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‘THE ROLE AND ACCOUNTABILITY OF THE MEDIA IN THE INDIAN DEMOCRACY- A CRITIQUE.’
A THESIS SUBMITTED TO THE
BHARATI VIDYAPEETH, UNIVERSITY
FOR THE Ph.D. DEGREE IN LAW
SUBMITTED BY
S SALEEL INDRANEEL
UNDER THE GUIDANCE OF
DR. JYOTI DHARM,
FACULTY, NEW LAW COLLEGE PUNE,
BHARATI VIDYAPEETH DEEMED UNIVERSITY
2016
CERTIFICATE
This is to certify that the work incorporated in the thesis entitled ‘The Role and
Accountability of the Media in the Indian Democracy- a Critique.’ For the degree of Doctor
of Philosophy in the subject of Law, carried out by Mr. S Saleel Indraneel under the
guidance of Dr. Jyoti Dharm, faculty of law, New Law College Pune, in the Department of
Law, Bharati Vidyapeeth Deemed University Pune, during the period from 2010 to 2016.
Prof. Dr. Mukund Sarda
Dean Faculty of Law,
Principal, New Law College Pune
Bharati Vidyapeeth Deemed University, Pune
Date:
Place:
CERTIFICATION OF GUIDE
This is to certify that the work incorporated in the thesis entitled ‘The Role and
Accountability of the Media in the Indian Democracy- a Critique.’ For the degree of Doctor
of Philosophy in the subject of Law, carried out by Mr. S Saleel Indraneel, during the period
from 2010 to 2016, under my Guidance.
Dr. Jyoti Dharm
Asst. Prof. New Law College, Pune
Bharati Vidyapeeth Deemed University
Place: Pune
Date :
DECLARATION
As required by the University Rules, I hereby state that the work embodied in
this thesis titled ‘The Role and Accountability of the Media in the Indian
Democracy- a Critique.’ forms my own contributions to the research work,
carried under the guidance of Dr. Jyoti Dharm, Faculty, New Law College
Pune, Bharati Vidyapeeth Deemed University, Pune. This work has not been
submitted for any other degree of this or any other University. Wherever
references have been made to previous works of others, it has been clearly
indicated and included in the bibliography.
Name and Signature of research student
Place: Pune
Date :
ACKNOWLEDGEMENT
This thesis is an attempt to study the role and accountability of the Media in the Indian
democracy. The topic selected is very challenging as various aspects are involved herein. The
arena of the powers and impact of the media has increased tremendously; and to cover all
these counters was not a very easy job for the researcher. The task of thanks giving and
expressing deep gratitude is very difficult as the words cannot suffice to do the task;
nevertheless the research student wishes to express his heart-felt gratitude and acknowledge
all those for the unforgettable and invaluable contribution made in order to complete this
research work.
First and foremost the researcher would like to express his thanks for the blessings and
everlasting gratitude to his parents Indraneel Shringarpure and Anjali Shringarpure. One
prominent and fatherly figure of Prof. Dr. Mukund Sarda, Dean Faculty of Law, and Principal
New Law College Pune has been a perennial source of support and guidance to the
present research student; for which he will be thankful till his last day. Further the research
student is highly indebted to his guide - Dr. Jyoti Dharm, faculty, New Law College
Pune. She not only has a unique way of guiding and educating but also has been undying
source of inspiration and courage. She has supported and guided the research student
whenever he was faced with difficult prepositions; for which he wishes to express his thanks
The researcher wishes to express his thanks and gratitude to another pillar of support ie Dr.
Sapna Deo; who has given many new ideas and insights to the researcher.
The researcher also wishes to express his gratitude to Ms. Archana Ubhe for providing
technical support.
The researcher is grateful to Ms. Smita Vedpathak, librarian New Law College Pune, for
extending library facilities.
Last but not the least the researcher is grateful to all his colleagues and his family for their
immense help and unfailing encouragement.
.
I
DETAILED SYNOPSIS
CHAPTERISATION
Page No.
CHAPTER I
INTRODUCTION
1-27
(a) The scope of research.
(b) Objectives of the research
(c) The problem statement of the research
(d) Hypothesis of the research
(e) Nature of the research
(f) Sources of data used in this research
(g) The applications of the principles of research methods in the present research
(h) Incorporation of the theories and the principles of Jurisprudence in this research.
(i) Introduction of the topic of the research
(j) Scheme of chapterisation
(k) Review of literature
1
2
2
2
3
3
4
4
5
19
21
CHAPTER – II
FREEDOM OF PRESS : THE CONSTITUTIONAL PERSPECTIVE
28-67
1. Introduction
2. History of press
(a) Aspects related to the freedom of press
(b) Existence of Press in Pre- British era
(c) Status of press in British era.
3. Freedom of press – Constitutional status
(a) Preamble
29
30
30
31
32
35
36
II
(b) Constitutional provision – Article 19(1) (a)
(c) Importance of freedom of speech and expression and freedom of press.
(d) Rights of press
(e) Scope of powers of the press
(f) Restrictions on freedom of press and media
(g) Press Commissions
4. Judicial activism and the press
5. Concluding remarks
36
39
40
44
53
58
61
66
CHAPTER III
IMPORTANT LEGISLATIONS RELATING TO MEDIA IN INDIA.
68-110
1. Introduction
2. Types of legislations
(a) General legislations
(b) Specific Legislations
3. General legislations
(a) The Indian Penal Code 1860
(b) The Indian Telegraph Act 1885
(c) The Unlawful Activities (Prevention) Act 1967
(d) Monopolies and Restrictive Trade Practices Act 1969
(e) Information Technology Act 2000
4. Specific Legislations
(a) The Press and Registration of Books Act 1867
(b) The Official Secrets Act 1923
(c) The Cinematograph Act 1952
(d) Drug and Magic Remedies (Objectionable Advertisement) Act 1954
(e) The Newspaper (Prices and Pages) Act 1956
(f) The Copyright Act 1957
(g) Prevention of Publication of Objectionable Matter Act, 1976 (repealed in
1977)
(h) Press Council Act 1978
70
71
71
71
72
72
73
74
75
78
81
83
86
88
89
90
92
III
(i) PrasarBharati Corporation Act 1990
(j) Cable Television Networks Act 1995
(k) Right to Information Act 2005.
5. Statutory bodies
(a) Ministry of Information and Broadcasting
(b) Press Council Board
(c) Press Information Bureau
(d) Registrar of Newspaper for India
(e) Telecom Regulatory Authority of India
(f) The Advertising Standard Council of India
(g) Directorate field publicity
(h) Central Board of Film Censors
6. Concluding remarks
93
96
97
100
101
102
104
104
105
106
106
108
109
CHAPTER IV
ROLE OF MEDIA IN DEMOCRACY
111-149
1. Introduction
2. Role of the media in a democratic society
(a) The role of the media as an unbiased informer
(b) Media’s role as an educator
(c) Media’s role as a mentor
(d) Role of the media as a guardian of the society
3. Impact of media
(a) Positive impact upon the society
(b) Negative impact upon the society
4. Media and right of fair trial
(a) Position of Media trial in United State of America
(b) Position of the media trial in United Kingdom
(c) Position of media trial in India
5. Conclusion
112
113
113
117
119
120
122
122
128
130
131
134
136
148
IV
CHAPTER V
ISSUES AND CHALLENGES BEFORE THE MEDIA
150-189
1. Introduction
2. Responsibility of the media in a democratic society.
a) Indispensable postulate of the society Fourth Estate of the Sate.
b) Media –watchdog of the society.
c) Media a mirror which reflects the realities.
d) Diverse information made easily available.
e) Deterrent effect upon the corrupt or unethical tendencies.
3. Theories of media influence
a) Limited – Effects Theory
b) Class-Dominant Theory
c) Culturalist Theory
4. Common challenge before the media
a) Paid news
b) Cross media holdings
c) Glorification of crimes
d) Neglecting important issues
5. Challenges before print media
a) Limited reach because of low literacy rate.
b) Aliteracy
c) Stale news
d) Costs involved in production and circulation.
6. Social media
a) Development of social media
b) Legal implications of social media
c) Social media vis a vis right to privacy
d) Social media as a tool of harassment
7. Conclusion
151
151
152
152
153
153
154
156
157
158
158
158
159
163
165
166
168
168
169
170
170
171
171
176
180
184
188
CHAPTER VI
CONCLUSION
190-218
V
TABLE OF CASES
1. Associated Press v. US. (1945) 326 US 1 --- 43
2. Baumgartner v. O.S., (1944) 322 US (673-74)s --42
3. Bennett Coleman and Co. v Union of India AIR 1973 SC 106 –52,63
4. Bennett Coleman v. State of J. & K. (1975) Cr LJ 211 --- 42,
5. Bobby Art International v Om Pal Singh Hoon (1996) SCC 1--- 52,196
6. Brandenburg v. Ohio 395 U.S. 444 (1969) --- 133
7. Branzburg v. Hayes (1972) 408 US 665 --- 43
8. C.K. Daphtary v O.P. Gupta AIR 1971 SC 1132-- 57
9. Chandrakant Kalyandas Kakodkar v state of Maharashtra AIR 1970 SC 1390--57
10. Express News papers Vs Union of India. AIR 1958 SC 578 41,43,57,88
11. Gopal Dass v. D.M AIR 1974 SC 213- 42
12. Gravel v. United States --43
13. Hamdard Dawakhana v Union of India AIR 1960 SC 554 – 49,65,86,195
14. Hartzel v. U.S. (1944) 322 US 680 (690). -- 42
15. Himmat Lal v . Police Commr. AIR 1973 SC 87: --43
16. Hindustan Times v State of UP AIR 2003 SC 250 – 65
17. Jagan Nath v Union of India AIR 1960 SC 675--58
18. K.A Abbas v Union of India AIR 1971 SC 481 –52,83,196
19. Kharak Singh v Sate of UP AIR 1963 Sc 1295--- 180
20. Kali Ram v. State of H.P. (2001) 4 SCC 324) (2001) 4 SCC 324) --131
21. Life Insurance Corporation of India v. Prof. Manubhai D. Shah AIR 1993 SC 171--
84
22. Madhu Limaye v Sub Divisional Magistrate Monghyr AIR 1971 SC 2486 -- 56
23. Maneka Gandhi v Union of India. AIR 1978 SC 597 -- 39
24. Naresh Shridhar Mirajkar v State of Maharashtra AIR 1967 SC 1 –48,61
25. Newspapers v Union of India, (1959) SCR 12: --42
26. Papnasam Labour Union v. Madura coats Ltd AIR 1995 SC 2200 -- 54
27. Pell v. Procunier (1974) 94 S Ct 2800 -- 43
28. Prabha v. Union of India AIR 1982 SC 6 – 43,64
29. R Rajagopal v State of Tamil Nadu AIR 1995 SC 264 -- 65
30. R. v. Evening Standards ( 19241 40 T. L.R. 833 (K.B.) (U.K.) -- 35
31. Ramji Lal Modi v State of UP AIR 1957 SC 620 --56
VI
32. Ranjit Udeshi v State of Maharashtra AIR 1965 SC881 --57
33. Re Daily Zemmedar AIR 1947 Lah 340 --42
34. re powers, Privileges, and Immunities of State Legislatures case AIR 1965 SC 745 --
49
35. re: G Alavander AIR 1957 Mad 427 --78
36. Romesh Thappar, v. State of Madras (1950) SCR 594 -42,45,46,56,197
37. Sahara India Real Estate Corpn ltd v SEBI AIR 2012SC 3829 48,195
38. Saibal Kumar v. B.K. Sen 1961 AIR 633 -- 136
39. Sakal News papers v Union of India AIR 1962 SC 305 – 46,61,88
40. Saroj Iyer v Maharashtra Medical (Council) of Indian Medicine AIR 2002 Bom 97 --
48
41. Schenck v. United States 249 U.S. 47 (1919) -133
42. Scot v Scot 1913 AC 417 - 48
43. Searchlight case AIR 1959 SC 395 – 49,195
44. Sharma v. Srikrishna AIR 1959 SC 395 -- 42
45. Sheppard v Maxwells 384 U.S. 333, 349-50 (1966) -- 132
46. Sree Raghavendra Films v Government of Andhra Pradesh and others 1995(2) ALD
8 -- 84
47. State of Bihar v Shailabala Devi AIR 1952 SC 329 – 55,58
48. state of U.P. v. Naresh and Ors (2004) 4 SCC 158) -- 118
49. Tata Press v Mahanagar Telephone Nigam (1995) 5 SCC 139 –50,66,87,195
50. Thornhill v, Alabama, (1950) 310 US 88 (102) -- 42
51. Time, Inc., v, Hill, (1967) 385 US 374 (388) -- 42
VII
ABBREVIATIONS
1. A.I.R. – All India Reporter
2. A.C.- Appeal Cases.
3. A.L.D. -Andhra Legal Decisions
4. B.L.R- Bombay Law Review
5. Cr.LJ. –Criminal Law Journal
6. C.A.D – Constitional Law Debates
7. Lah. H.C. – Lahore High Court
8. Mad. H.C.- Madras High Court
9. S.C.- Supreme Court
10. S.C.C. – Supreme Court Cases
11. S.C.R. – Supreme Court Reporter
12. S.Ct. - Supreme Court Reporter (US)
13. T.L.R.- Times Law Report
14. TRP. – Television Rating Points
15. US. – United States Report
Chapter I
Introduction
Synopsis of the chapter
Introduction
(a) The scope of research.
(b) Objectives of the research
(c) The problem statement of the research
(d) Hypothesis of the research
(e) Nature of the research
(f) Sources of data used in this research
(g) The applications of the principles of research methods in the present research
(h) Incorporation of the theories and the principles of Jurisprudence in this research.
(i) Introduction of the topic of the research
(j) Scheme of chapterisation
(k) Review of literature
1
Chapter I
Introduction
The title of the present research is ‘The Role and Accountability of the Media in the
Indian Democracy- a Critique.’ As the title reflects the role of the media is assessed;
along with its issues of accountability. Today, the word media is used by the general
public in all the spectrums of life. It is not a surprise because no industry has grown,
expanded and flourished as that of media in the present times. Under the garb of
speech and expression, the media has encroached upon all the facets of life of an
individual. This fact is not only applicable to the Indian soils, but is global. Not only
this, the media has become so powerful that it can make or break the government by
influencing the people. The public also heavily depends on the media to secure
information. In this scenario the question of the accountability of powerful media
arises. Is it that the media has just got a fundamental right of freedom of speech and
expression which it can use as per its whim or wish? Is the media answerable at all,
and if yes, to whom and how? A humble attempt has been made by the student of
research in the present thesis to deal effectively with these issues.
(a) The scope of research.
This research is purely a legal research and all the sources of legislations are
included in the ambit of the research. The scope of the research includes the
aspects of Jurisprudence, the Constitutional law, Constitutional Assembly
Debates (CAD), research methods, statutory enactments, delegated legislation
in the form of rules, bylaws, orders, regulations etc, and precedents. All the
above mentioned subjects are dealt with only to the extent of which they are
related to the topic of the research. The scope also includes the organisations,
autonomous bodies, agencies which are related to the different modes of the
media. The powers, functions, limitations which are prescribed to these
bodies have been included in the research. Further all the aspects which are
related to the different modes of the media constitute an integral part of the
scope of the research. Some fleeting reflections to the areas of Criminal
Jurisprudence, Environmental Law and the International Law are made in this
research, but only to the extent of their relevancy to the topic of the research.
2
(b) Objectives of the research
The following objectives have been identified for the purpose of this research.
(i) To identify the rights of the media.
(ii) To assess the limitations imposed upon the rights of the media
(iii) To find out the methods of transgression of these limitations by the
media.
(iv) To critically analyse the concept of media trial. To assess the impact of
media trial upon the public as well as the legal system.
(v) To find out whether the media is accountable; and if yes, to what
extent.
(vi) To make an endeavour to strike a balance between the two conflicting
rights, that is the right to privacy of an individual versus the right of
free press to report.
(vii) To suggest a few steps to curb the dictatorial aspirations of the media.
(c) The problem statement of the research
The main research problem is that what criteria can be evolved in order to
strike a balance between the rights of the press versus the right of the
individual. This problem includes the issues like what would be the restraints
to be imposed upon the free press. In spite of the fact that there are a number
of restrictions already prevailing over the freedom of press, but still the press
has extended its scope, to such an extent that the day will not be far away
when the press will rule through its pen.
(d) Hypothesis of the research.
The tentative solution in the form of hypothesis is that the media should not
exceed the limits of its rights for the sake of extraneous considerations, so that
the rights of the individuals are secured. It is the hunch of the present
researcher, that the media does overstep its limits to gain popularity and
publicity. The problem of balancing of conflicting rights can be solved if the
media before reporting, itself analyses, whether their reporting is unbiased,
free, well informed and neutral. Freedom of press is important for every
democratic country. Every organ of the state is accountable to each other and
3
to the people in general. No one is above law and media shall not be an
exception to this. The media should be accountable to themselves and should
adhere to the ethical codes, rather than be forced by law making agency all the
time.
(e) Nature of the research
Primarily this research is a doctrinal research as the library method is
employed while conducting this research. So also primary sources of data
collection are not used, hence this research can be classified as a purely
doctrinal research. This research is a legal research as only the legal principles
or precepts are analysed here. The researcher has followed the analytical and
critical method in this research. The researcher has tried his best to analyse all
the relevant concepts in an objective manner. The focus of this research is to
give a critical evaluation of the role of the media and its impact on the public
and the legal system.
(f) Sources of data used in this research
As this research is doctrinal research the sources of data involved in this
research are secondary sources of data which are as enumerated below.
(a) Text books
(b) Reference books
(c) Journals
(d) Index to Indian Legal Periodicals
(e) C.A.D
(f) Articles
(g) Supreme Court Reports (A.I.R, S.C.C, S.C.R)
(h) News papers
(i) Internet
(j) Legislative enactments
4
(h) The applications of the principles of research methods in the present
research
The researcher has tried to incorporate the principles of research method in
this research. The steps involved in the present legal research are as follows,
the identification of the problem, the formulation of hypothesis, the collection
of data through the secondary sources, the organising and arranging of data,
the analysis of the data, the interpretation of data and the drawing of the
conclusion or the resultant based upon the interpretation of the data. The
steps of the sampling techniques are not included in the research, as this
research is purely doctrinal. So also the techniques of coding and decoding
are not included in the research. The research design includes all the steps
from the identification of the problem, till the scheme of chapterisation which
are explained in this chapter of introduction.
(i) Incorporation of the theories and the principles of Jurisprudence in this
research.
The relationship between fact and theory is undeniable. Every theory has to
co-relate to facts and the happenings of the facts can be based upon a theory or
can be explained by the theory. It is a universally known fact that the
principles of Jurisprudence are the foundation of every legal system. To put it
in other words, the entire fabric of laws is based upon the principles of
Jurisprudence. The researcher has made an attempt to base the research on the
relevant principles of Jurisprudence. The ‘concept’ of the balancing of
conflicting interest, which has been evolved by the eminent jurist, Roscoe
Pound- Harvard Law University; is the theme of the present thesis. The
objective of this research is to provide criteria for the balancing of the
conflicting interest of the media’s freedom of reporting information with the
individual’s right of privacy and the rights of accused. This aspect has been
dealt in detail in the present thesis. The conclusion of this research is based
upon the theory of the modern natural law or the revival of the natural law.
According to the revival of the natural law theory, the natural law rights
should prevail within the sphere of legal limitations. No right is absolute and
has to be curtailed reasonably. Hence the rights of the media as well as the
5
rights of the individuals cannot prevail absolutely that is without restrictions.
Each right has to be limited so that another person’s right can prevail. So also
few other principles from Jurisprudence have been referred where ever it is
thought to be necessary and relevant.
(j) Introduction of the topic of the research
The media is regarded as the founding stone of the democracy. This is
because it gives to the people requisite channel to express one’s own thoughts.
The democracy is founded on the principle that the public has a say in the
governance of the state, and the press gives them a forum to say what they
want. A very different position prevails in the socialist’s states which are
based upon the Marxian concept, where the people are prohibited from
expressing themselves against the government or the government policies. The
democracy is founded exactly on the opposite principles of a socialist state,
where the democracy rests upon the principle ie the government of the people
by the people and for the people. So if the government is going to prevail for
the people it is necessary for the government to know what the people desire
or aspire. Such desires or aspirations are communicated to the government
only and only by the media. That is why it is often said that the media plays a
crucial role in the effective functioning of the democracy. The media plays an
important role in imparting information to the public. In the absence of the
media one cannot imagine the mess caused by lack of information leading to
ignorance. In such a situation the public will be unable to know what the
government is doing and what they are to do; in which case the society will be
in a complete chaos. Realising this situation the media is granted the freedom
of speech and expression through which information regarding almost all the
aspects of human life should be imparted to the public at large.
The term freedom of press means, the press has the freedom to express its
opinion, to inform, to disseminate the information etc. But the freedom of
press does not mean that the press has got no limitations. The researcher has
tried to distinguish four different but related notions of the freedom of speech,
6
the freedom of expression, freedom of press, and the freedom of information
in the second chapter of the thesis1.
The researcher before analyzing the different dimensions of the freedom of
media has given a cursory glance to the history of the freedom of press.
Aspects like the ancient modes of communication and information are briefly
dealt with. The history of the freedom of press is divided into two parts:
(i) Existence of the press in pre British era. Here the nature of the press
has been described which was prevalent in the Mughal era. The
informal press which prevailed in the mughal era had a very limited
role to perform. The information which was gathered, was generally
for the King; and the public received only very limited information.
(ii) The status of press in British era. The role of the press changed and
became wider after the East India Company set its foot on the Indian
soils. The rulers were the Britishers and the ruled ones were the
Indians. The Indians being the ruled ones used the press as an
instrument to incite and instigate the people to join the freedom
struggle. A remarkable fact to be noted here is that the press for the
first time was used to impart and circulate the news. So also the evil of
the pre –censorship was started by the Britishers to curtail the freedom
of press. The Britishers wanted to crush the attempts of revolts of
independence and they used the weapon of censorship to curtail the
independence of the press. The Britishers knew that the press was
capable of uprooting their rule in India and hence a number of
regulations and statutory enactments were passed to curtail the press
like the Indian Mirror, Samachar Darpan, Kesari2. Battle between the
press and British Government has been dealt in the second chapter of
the thesis. The Britishers had recognised the power of the media; and
this power has not only consistently, but has also rapidly grown in the
present times. 1 Infra; p. p.37 2 Infra; p. 33
7
The founding fathers of the Indian Constitution were aware of the struggles of the
press to gain freedom and were sensitive to the hurdles in the form of censorship
which were faced by the press and hence decided to give a firm footing to the freedom
of speech and expression.
The Constitution confers the right of freedom of speech and expression in the Article
19(1)(a) The freedom of press is included impliedly in Article19(1)(a) of the
Constitution. Hence the media enjoys the fundamental right of speech and expression.
The aspect of this right has been covered in this research3.
Further the researcher has moved on to the components of the press; which includes
the correlated aspects of press such as the right of printing, publishing, circulating,
disseminating the information4.
Apart from these aspects the scope of the press is very broad and includes the right to
criticize which is considered as one of the pre requisites of a healthy democracy. If the
right to criticize is not incorporated in the freedom of press then the press loses its life
and may become only a puppet in the hands of the government. The power to
criticize, of the press is very crucial and acts as a deterrent check on the government
or its officers5. Some other powers of the press which are scrutinised include the
power to conduct interview and the power to report court proceedings. Both these
powers are very important and subjects of debate. The power to conduct the interview
can be exercised only if the interviewee has given the consent6. This technique of
conducting interviews has been employed by the media on very extensive scale these
days. Thus the media conducts and hypes the interviews of the prominent people, just
to impart information, or for any other purpose; such issues are dealt in the forth
coming pages. The researcher has dealt with the aspects of merits of the power of the
press to conduct interviews. Another most controversial power of the media is to
report the court proceedings. Many a times the media while reporting the court
3 Infra; p. 35 4 Infra; p. 42,43 5 Infra; p. 46 6 Infra; p. 47
8
proceedings affects the process of the court thereby causing interference of the
smooth functioning of the courts. This aspect is analysed with the relevant case laws7.
Another controversial power of press is to report the legislative proceedings. Here the
power of the press to report the legislative proceedings is in direct conflict with the
parliamentary privileges. In such a situation, whether the parliamentary privileges
should prevail or should they give way to the democratic right to know, which the
press protects and promotes 8 . An attempt has been made to deal with such
complicated issues. Aspects like the power of the press to advertise have been dealt
with the help of the case laws, which have given a wide meaning to the term
advertisement9.
Another very important power of the media which constitutes the life and the blood of
the media is the power to broadcast. A detailed description of the power to broadcast
has been attempted, so also the various types of electronic broadcasting have been
dealt along with their impact10.
The researcher has then moved on to analyse and evaluate the press commissions
which were constituted in the year 1954 and 1982; a brief account of their objectives
has been outlined. The main purpose of the appointment of the commissions was to
seek recommendations from them, for the development of the press. These
recommendations have been analysed by the researcher.
Every right in a legal system is demarcated by limitations and so the Indian
Constitution on one hand confers the freedom of speech and expression to the
individuals; and on the other hand empowers the state to place the restrictions on the
said freedom. Again the Constitution does not give a free hand to the state to impose
restrictions, but imposes restriction of “reasonability” upon the limitations, which the
state can place upon the freedom. That means the state can curtail the right of free
press only by imposing reasonable restrictions on the freedom. The question which 7 Infra; p. 48 8Infra; p. Id 9 Infra; p. 49 10 Infra; p. 57
9
often arises is that whether the restriction is within the purview of reasonability or not;
and there are a number of judicial pronouncements dealing with the ‘reasonable’
aspect of the restrictions 11 . The researcher has analysed the landmark judicial
pronouncements regarding this aspect. Sometimes the judiciary has given a broad
aspect to the freedom of press and sometimes, a narrow scope of right has been
granted. With the help of the case laws the researcher had tried to cull out the scope of
the freedom of press.
But one cannot get the exact scope of freedom of media by just analyzing the
Constitutional limits, because the freedom of media is further limited by various
enactments. Actually the enactments had started from the censorships which were
imposed by the British Government. Some very stringent enactments which prevailed
were the Gagging Act and the Vernacular Press Act. After the Constitution many
enactments are passed which deal with the limitations of press and the media12.
For the sake of the convenience, the researcher has evolved the classification of the
statutes based upon the nature of the statute. If the statute puts the general restriction
on press and the media, it is classified as a general statute such as the Indian Penal
Code, Information Technology Act, Monopoly and Restrictive Trade Practices Act
etc.
The Information Technology Act 2000 can be considered as a statute which is
responsible to bring a structural change in the modes and methods employed by the
media to impart the information to the public. This statute has been analysed in depth
in this research. Some other statutes which impose general restrictions on the press are
also analysed and evaluated herein. Another type of legislations which further curtail
the freedom of speech and expression inclusive of freedom of press are the specific
legislations. Such legislations are described as specific legislations by the researcher
because they deal with specific aspect of restriction imposed upon the freedom of
press like The Press and Registration of Books Act 1867. This statute deals with the
regulation of the press, related only to the aspect of the printing of books and the
11 Infra; p. 61 12 Infra; p. 72
10
newspapers by the press. The issues like the impact of this statute on the freedom of
press have been dealt in depth by the researcher13. This part of the research comprises
the analysis of many more statutes14. The Official Secrets Act 1923 was enacted by
the British government mainly to protect its secrets against the Indian and other
foreign countries. The object of this statute was to penalise any person who leaks the
official secret in any way. The question that is raised is of the utility of this statute in
today’s times; especially after the enactment of the Right to Information Act 2005,
which has an overriding effect over the Official Secret Act15 subject to the provisional
condition mentioned in the statute.
One statute which constitutes a high level mark of authoritarian view is the Prevention
of Publication of Objectionable Matter Act, 1976 (repealed in 1977). This statute is no
doubt repealed but is still analysed for the perusal of academic interest. The analyses
of this statute points out the conditions which amount to vast curtailment of freedom
and which reflect upon the government’s intention to cut the throat of the press.
The Press Council Act 1978 has been dealt in this chapter for the reasons it provides
for the establishment of the Press council. The origin of the Press Council has been
dealt in brief, along with the powers and functions of the Press Council16. How far the
recommendations of the Press Council are really implemented by the news agencies is
a question which requires to be answered. The Prasar Bharati Broadcasting
Corporation of India Act 1990 is considered to be the most dynamic and the liberal
legislation regarding the press and media in India. This statute is termed as the most
crucial statute because it has for the first time granted independence to the media from
the control of the government. The main object of this statute is to promote the
freedom of the press and to ensure a balanced growth and expansion of the
broadcasting of the modes of the media. This statute imposes the regulations upon the
modes of the media for the sake of the advancement and development of media itself.
It mandates the projecting of such programs which furthers the Constitutional values.
13 Infra; p. 78 14 Infra; p.p. 78 - 96 15 Infra; p. 90 16 Infra; p. 92
11
The study on media would be incomplete without analyzing The Prasar Bharati
Broadcasting Corporation of India Act 1990.
One of the landmark legislations which ensure the implementations of the principles
of democracy in practise is the Information Technology Act 2000. One can state that
the freedom of press and media and Information Technology Act 2000 are
supplementary and complementary to each other. The Information Technology Act
strengthens the right of the media. This statute brings transparency in the governance,
because the access to the government records is permissible as a matter of right to the
individuals. This statute acts as an indirect check on the government; the function
which the media also tries to perform. Since this statute is considered to be very vital,
in the protecting and promoting of the freedom of press and media, it finds place in
the present study17.
Many more statutes including The Cinematograph Act 1952 have been scrutinised in
this chapter with the focus of assessing the ambit of the freedom of the press
guaranteed by these statutes. The Cinematograph Act 1952 seems to be very
frequently challenged before the courts of law as the government has made many
rules and orders under this Act, which leads to the infringement of this statute. The
battle between the press and government regarding the freedom of speech and
expression has been incorporated in this research work18.
The circuit of the regulations imposed on the press and media would be incomplete if
the regulations made by the statutory bodies are not included here. The researcher has
incorporated a number of statutory bodies, which governs the press and media.
The first and the most important body which is considered to be the fountain head of
the media and broadcasting, is the Government department of Information and
Broadcasting. The function of this department is to suggest such measures which
would promote the imparting of the information and help in broadcasting. Further it
has to perform a number of important functions which have been enumerated in this
part of the thesis. The issues like whether this government department really allows
the media to work independently or not, is dealt here. The statutory body like the
Press Council who have been given the powers to control and regulate the press, have
17 Infra; p. 97 18 Infra; p. 108
12
been discussed here. Whether the Press Council has been given sufficient powers, so
that they are really in a position to constitute an effective check on the press is a
matter of importance, which have been included in this study. The researcher is
clouded with the question as to why the Press Council is created, if it is not armed
with the appropriate powers to constitute a check.
The Advertising Standard Council of India regulates the content and quality of the
advertisements. The powers, the functions of the council have been analysed and
assessed. If the Cinematograph Act 1952 is controversial, the central board of film
censors is no exception, the rules and the regulations made by the board has given rise
to a number of conflicts.
The exercise to deal with the various legislations and the statutory bodies is
undertaken with the focus of finding out how these legislations, the regulations and
orders made by the legislators affect the freedom of speech and expression inclusive
of press. When one glances at these numerous restrictions, it is felt that the media
cannot take undue advantage because its freedom is restricted by the string of
legislations. So the question before the researcher is that, in the fabric of restrictions,
where is the chance for the media to misuse its freedom. But the reality reveals that
the media by misusing its freedom infringes the individual’s rights. In such a situation
what are the factors which aid and assist the media to misuse the freedom in spite of
the various restrictive legislations, remains to be explored.
The crucial part of the present study consists of the role of the media and its impact
upon the society. The media is one of the most important agencies in a democratic set
up because it plays the crucial role of imparting information to the public. It would
not be wrong to say that the taking and receiving of the information mobilises the
society.
The role of the media prevalent in the ancient times, as compared to the media of the
present times has undergone a tremendous change. It occurs to the mind of the
researcher that the development in the other spheres of the community is responsible
for the change in the role of media. The role of the media in the ancient times was
only to give information regarding the wars and the whereabouts of the enemies. A
little later this role of the media was enhanced, as the personal information related to
13
family was being sent and received. From this marginal role of the media, to the all
encompassing role of today is a matter of concern and worry, because one has to see
the consequences of the very diverse spectrum of the role of the media today.
The prime and the essential role of the media is to impart information. It is for the
performing of this role that the media has come into existence. The media has to
inform the public the information regarding the Government policies, intentions, plans
and schemes. When it is allowed to do so it can be stated that the freedom of press
prevails. Imparting information is a very intricate activity because the informer may
project the news in such a manner that it wants the receiver to receive. The researcher
attempts to find out whether the media imparts the information in an unbiased manner
or not.
The function of the media is not only to impart information but also to educate the
masses through information. Hence the function to impart information becomes more
important as it also includes education through information. Now it has to be seen
what type of education is imparted by the media through information. When the
children are continuously glued to the television and watching the programs which
project either anti social activities, or immoral activities; one can just imagine the
quality of education imbibed by those children. The whole civilised society is founded
on good ethical and moral education. The question which props up here is that should
not the media be more responsible in imparting education through information. The
researcher has also tried to lay down the mandates to be followed by the media when
it is imparting educative information.19
The media not only informs and educates the masses but also acts as a mentor. The
responsibilities of the mentor are very heavy as he is responsible for the development
and achievements of his ward. The media is a very influential medium and its impact
lasts for a longer period. It is for this reason that the media has become powerful and
rules the minds of the people through its influence. As a mentor the media should
enable the public to make an independent decision or to formulate an independent
opinion. The media should perform the role only to this extent and should not
indirectly by using its influence dictate to the public its own opinion. But as can be
19 Infra; p 117
14
seen today the media while imparting information colours it or twists and turns it in
such a manner that the public forms the opinion which the media projects. The
question is how to prevent the media from moulding the public opinion and imparting
information in an objective ethical manner. Another very positive role of the media
that it acts as a guardian of the individual’s right. The issues which are dealt here is
that, what are the modalities the press resorts to in the cases pertaining to the
protection of the individual rights.
The role of the media as an informer, educator, mentor and guardian is not only very
applauding but is also very beneficial to the society. As this research comprises of the
critical analysis of the role of the media, it becomes imperative on the part of the
researcher to assess the positive and the negative consequences of the role and the
function of the media. Before one criticizes the role of the media one has to see the
positive aspects of the media. The positive impact of the media is commendable. The
first and the most important aspect of the media is that it makes the democracy
effective and meaningful. It is the media which acts as a linkage between the
government and the public; as the thoughts are exchanged of each other, only through
media. The pros and cons of this aspect have been given a considerable thought in this
part of the thesis20. Significant impact of the role of the media is that it helps in the
implementation and application of the Doctrine of Rule of Law as propounded by A.V
Dicey21. Many a times the media assists in enforcing the Constitutional values such as
equality, fraternity, nationality etc. The media enforces such Constitutional values by
way of imparting information to the masses. So even if the masses are not aware of
what has been embodied in the Constitution; such values are imbibed by them just
because of the influential projection of the media.
The media acts as a strong agency to formulate organised public opinion. The
relevance and importance of the organised public opinion22 has been adequately dealt
in this research. It is only through the advertisement and programs like the beti
bachao, beti padhao, building and maintenance of clean toilets, swach Bharat, green
20 Infra; p 123 21 A.V Diecy; The Constitutional law (8t Ed) 22 Infra; p 124
15
India, saving of water and saving of fuel etc, that the media is quite successful in
promoting the social values and protecting the environment to some extent. The
media is also responsible to grant aid, assistance and help to the needy people in the
situations like any other catastrophe. The media provides the help lines in the cases of
adverse contingency. All of these issues have been dealt under the relevant chapters
For these activities the media has to be applauded, however unfortunately this is not
only the side of the impact of the media. The other dark and unhappy side which
prevails as far as the impact of the media is concerned is assessed and evaluated by
the researcher. Sometimes the media not only helps in the formation of the public
opinion but thrusts its opinion upon the public by imparting information in such a
manner that it makes the public believe, what it wants the public to believe. As a
result, the society is completely misled by the media. The point to be noted here is
that the media has to guide the society but it is doing exactly the opposite. The
dangerous consequences of this issue have been dealt in the forthcoming pages. The
media sometimes plays havoc with the public’s emotions and sentiments by
highlighting the scandalous news in a very catching manner. Not only this, but the
media sometimes hypes the news for its personal benefits like the Television Rating
Points popularly known as the TRP. These grave issues have been tackled and some
suggestions have been put forward to minimise this negative impact of the media.
The liberalising policy of 1991 has a dual impact on the media. On one hand it grants
independence to the media from the government control while on the other hand it has
promoted unfair competition between the different channels of the media. This unfair
competition among the different channels of the media has resulted in the race of,
which channel projects the news first, and for doing so, the channels adopt unfair
means. This unfair practise of the channel jeopardises the public opinion. The
liberalising policy of 1991 and the after effects of it have been analysed in the
relevant chapter. Another very grave consequence of the liberalising policy is that the
media has become commercial. Now it has so happened that the guardian or the
mentor or the watch dog, only projects the news in favour of the person who is able to
pull the money strings. If the media indulges into ‘paid news’, one can just imagine
16
the consequences of this on the democracy, the Constitutional values and the Rule of
Law. Such grave and important issues have been incorporated in the present study.
The media trial is the most popular concept which is in vogue today. The researcher
has briefly dealt with the origin and the concept of media trial. In order to get exact
perception of the concept of media trial in India the researcher first has dealt with the
aspects which are related to the media trial in the United States of America and then
England. The issues like the origin of the media trial, the extent of the right of the
media to hold the media trials which prevail in the United States of America have
been dealt in detail. Then what is the position of the media trial which prevails in
United Kingdom is also dealt with in the light of legislative enactments. The concept
of media trial prevailing in United State of America and England has been
incorporated in this thesis for the reason of giving a comparative analysis. After
analyzing the concept of media trial in these two legal systems, the researcher has
turned his attention to the concept of media trial in India.
At the outset the researcher has dealt with the important issues of the principles of
criminal justice which are completely ignored by the media trial. One of the
fundamental principles of criminal jurisprudence which is the presumption of
innocence unless proven guilty is totally ignored by the media trial. It is the right of
the accused that he is presumed to be innocent, unless and until he is proved guilty. In
the case of media trial the media without abiding to the legal issues pronounces a
person to be guilty. In such a situation, not only the public opinion is created against
him but also the judiciary may feel itself under the pressure of public opinion and the
overpowering influence of the media. This is a very grave situation as the balance of
the case may tilt in favour of the accused or it may go against him. Another important
principle of criminal law which prescribes the parameter of the degree of proof is of
“beyond reasonable doubt”. It means the guilt of the person shall be proved beyond
reasonable doubt. In the case of media trial the person is declared to be guilty even on
allegations and the degree of proof of “beyond reasonable doubt” is conveniently
forgotten. The consequences of sidelining of the fundamental principles of criminal
jurisprudence which endanger the system of criminal justice have been elaborately
17
dealt with herein23. The adverse aspects of media trial such as moulding the public
opinion, in favour or against any individual are in contravention with the ethical
principles of journalism. Further the media trial even contravenes the doctrine of
separation of powers and the Constitutional mandates which state that, each branch of
the state has to perform the assigned functions. In case of media trial the media tries
to perform the function of the judiciary to adjudicate the conflicting matters which is
allocated by the Constitution. The pertinent question is who has given the right to the
media to step in the shoes of the judiciary? The present researcher has dealt with these
complicated issues in the forth coming pages. Further a comparison between a fair
trial by the court and trial by the media has been attempted by the researcher, in which
the violation of legal issues, the pressure which is imposed upon the judiciary etc are
also incorporated in the relevant chapter. The media trial also has a repercussion on
the social status and the image of the accused. If the media has declared a person to be
guilty and the judiciary has acquitted such a person then the society believing the
projections of media is not very willing to attribute the acceptable social status to him;
as he has lost image and social status due to the media projecting him as a criminal.
This also has another more severe impact which is losing of the faith in the judiciary.
If the media has projected a person to be guilty and consequently a competent court
has acquitted him then the public may have the apprehension that the person was
acquitted due to extraneous consideration. The public imposes a lot of faith in the
media, it always feels that media is their spokesman and functions for their rights. So
also the influence of the media is so powerful that the public takes the verdict of the
media to be correct, fair and objective; nobody questions the intentions and the
motives of the media. So many a times it happens that the media misleads the society
by conducting the media trial.
The recommendations made by the Law Commission in its 200th report, and the
suggestions made by Hon’ble Mr. Justice K.G. Balakrishnan24, Former Chief Justice,
Supreme Court of India have been incorporated in this work. The researcher has made
a humble attempt to suggest a few guiding principles which if followed by the media,
would make the reporting of judicial proceedings more in consonance with the
23 Infra; p 130 24 Law Commission 200th report (2006)
18
principles of justice. The present researcher feels that there is a difference between
two notions, which are media trial and media activism25. The researcher has dealt in
depth these two concepts. Today instead of media trial media activism would be
beneficial for the society; but the media trial is popular among the public. So one has
to see the factors which make the media trial so popular. These factors are elaborated
and analysed in the forthcoming pages. An attempt has been made to find out whether
the media trial prevails only for the commercial gains for the media or it is the public
demand for such trials. One query which arises is that, is the media responsible to
create the public demand. Why media trials are in demand and what alternatives can
be forwarded, are the challenges faced by the present researcher.
The crucial aspect of this research work constitutes the issues and challenges of the
media. The media is regarded as indispensible postulate of the society. One can
compare media to a mirror which reflects the realities. The media should not twist or
distort information, but merely should reflect the reality as it is. No other medium is
as influential as the media, so one ponders to think as to what are the reasons for the
media’s highly influential powers. The researcher has analysed and accessed the
theories of the media influence. Ideally the culturist theory should prevail, however in
the reality; the class dominant theory of media influence prevails.
The challenges faced before the media today are very complex. The concept of paid
news goes grossly against the very foundation of the democracy, as it cheats the
people by giving them false or incorrect information for some monetary or other
consideration. In a democratic country like India, the people rely on the media while
making their choices. When the media itself misguides the people for some selfish
gains, then the entire democracy is endangered. The researcher has tried to throw light
on this aspect.
Cross media holdings is another impediment to democracy. Multiple channels are
encouraged so that the multiple views can be appreciated, but when one person or a
particular agency holds multiple channels, then the view of that person or that
particular agency is projected in different ways and people tend to accept it without
appreciating the other side. Few other challenges which are dealt are the glorification
of crimes, low literacy rates, aliteracy etc. Some aspects of the social media is also
25 Infra; p 149
19
dealt in this research. The advantages and the disadvantages of the social media along
with the social implications of the social media are dealt in detail. Further aspects of
criminal activities on the social media are dealt with in brief. An important aspect
involved in social media is violation of right to privacy. It can be stated that the
social media channels are innocently or neutrally conducting their functions, and only
when their applications are misused the danger of violation of right to privacy arises.
After elaborating and evaluating all the aspects mentioned above the researcher comes
to the conclusion that the media should perform its function neutrally, objectively and
ethically. Only then the adverse impact on the media will be minimised.
(k) Scheme of chapterisation
This research is divided into six chapters, and the scheme of chapterisation is
as follows :
Chapter I - Introduction26 of this research deals with the research methodology, which
is followed while conducting this research. The objectives, the research problem
along with the hypothesis the nature of research, the sources of data are mentioned in
this research. It is a well known fact that the principles of jurisprudence are not only
very important, but are considered as the fundamental postulates of every legal
system. Hence any concept from a legal system has to be based or is originated from
the arena of jurisprudence. Keeping this in mind the researcher has tried to apply the
research aspects to some of the principles and theories of Jurisprudence. The relevant
principles and theories and principles of Jurisprudence, which have been incorporated
in this research, have been mentioned in this chapter.
Chapter – II Freedom of Press: The Constitutional Perspective27. The nucleus of this
research is the role of the media. Over the years the media has developed as a
significant tool to effectively exercise the freedom of speech and expression. To
analyse the role of the media, it becomes imperative for the researcher, to deal with
the history of the press. The history of the press has been analysed into two segments
(A) the pre British era (B) and the British era. Through the historical angle one can
easily appreciate as to how the press has performed the various roles from the Mughal
period to the British period. After dealing with the history, the researcher has dealt in
depth, with the constitutional status of the freedom of press. The researcher has made
26 Supra p 1-4 27 Infra p 29
20
a humble attempt to deal with the constitutional provisions, which deal with the press,
the rights of the press, the powers of the pres. It is a well known principle that no right
can be absolute and the scope of the right can be elucidated by demarcating the
restrictions imposed on that right, and hence the restrictions are dealt in this chapter.
This chapter also contains the reports of the Press Commissions. Lastly the chapter
deals with judicial activism, which give an insight as to how the judiciary time and
again have protected the press, when the rights were being encroached upon, and also
has imposed reasonable restrictions upon the press to uphold the spirit of justice.
Chapter III - Important Legislations Relating to Media in India, the researcher has
stated briefly about the some important legislations which govern or control the
media. Apart from the constitutional provisions there are number of statutes which
deals with the press. It becomes imperative on the researcher to deal with these
statutes exhaustively (only the provisions related to the press) to make his research
comprehensive and complete. Sixteen statutes have been divided according to their
content into two groups, namely general legislations and specific legislations. Further
some statutory bodies which deal with the aspects of the press are also dealt in this
chapter.
Chapter IV- Role of Media in Democracy, the researcher has tried to examine the role
of media in a democratic set up, especially in a country like India, where the people
rely heavily on the media, and the media plays a pivotal role in forming the opinion of
the people. This chapter is one of the most important limb of this research. The
researcher has dealt in detail the various counters of the role of the media, to mention
a few, role of a informer, mentor, guardian, educator etc. As the media dispenses a
central, conspicuous and the vital role, it is said to be the oxygen of the democracy.
To put it in other words, the democracy survives only because of the effective and the
objective functioning of the press. After dealing comprehensively with the role of the
press, the researcher has turned his attention to another crucial aspect of the research
that is the impact of the media upon the society. In today’s times no agency is as
influential as the media as it has tremendous potential to influence the masses on the
large scale in all walks of life; which is why, the media is regarded as omnipotent.
The impact of the media is dual; on one hand there is positive impact of the media
upon the society, on the other hand there is a negative impact of the media on the
society. The positive as well as negative impact of the media, upon the society has
21
been dealt exhaustively in this chapter. Further the researcher has also projected as to
how the media sometimes in a quest to provide spicy news, ends up infringing the
rights of the accused, paving way for media trial. In order to study the impact of the
media trial, the researcher has also done a comparative analysis of the position of
media trial prevalent in the United Kingdom, United States of America, and India.
Chapter V- Issues and Challenges before the Media, the researcher has tried to
analyse the responsibilities of the media. The media is not only bridled with the task
of shouldering a very heavy, important and crucial duty in the present times; but also
has to face stiff challenges. At the outset of this chapter, the researcher has dealt with
the issues, like the responsibilities of the media and the theories of the media
influence. Further, the researcher has tried to deal with the challenges which are faced
by the media, such as problem of paid news, cross media holdings, neglecting
important issues, aliteracy etc. Later the researcher has also dealt with the concept of
social media, its development and its legal implications. Another important aspect of
social media vis a vis the right to privacy has also been dealt in this chapter. However
the vast and diverse subject of the social media, the researcher has only given a brief
overview of the concept of the social media and has refrained from dealing with the
minute details of the concept of the social media.
The final chapter of this research deals with the concluding remarks, a few
suggestions in the light of the objectives of this research are also made, so also the
researcher has tried to state that his hypothesis is correct.
(K) Review of literature
(i) Manoj Ranjan; Media in Modern Law (Deep & Deep Publication 2011)
(ii) Ram Jethmalani, D.S. Chopra Cases and Materials on Media Law
(Thomson Reuters 2012)
(iii) Madhavi Goradia Diwan; The Facets of Media Law ( Eastern Book
Company 2013)
(iv) Dr. S.R. Myneni Media Law (Asia Law House 2014)
(i) The book ‘Media in the Modern India’ written by Dr. Manoj Ranjan
consisits of 318 pages and is divided into five chapters. The first chapter is
the introduction, which introduces the topic and deals with the pioneers of
Indian Journalism. Further the author has dealt with the types of
journalism such as print journalism, advocacy journalism, yellow
22
journalism, environmental journalism etc. The second chapter consists of
Media in Indian perspective: the Gandhian era. This chapter deals less with
the concept of history of the media and more with the Gandhiji’s journey
to journalism. Each and every minute details of Gandhiji’s freedom
movement and the role of the media in the freedom movement have been
dealt elaborately in this chapter. Media and the Globalised world is the
title of the third chapter of this book. Initially in this chapter, author has
commented on the impact of the globalisation and the technology upon the
media. Further the author has analysed the journalism freedom in twenty
five countries altogether. So also the comparative analysis of the legal
restraints prevalent in various countries has been dealt with, along with the
problem of the global journalism.
The fourth chapter deals with the concept of media trial. Issues like the political
expedience, ethics of the sting operations, violation of the law and the sting
operation, impact of the pre -trial publicity etc, has been dealt with. The author is
of the view that the media should be regulated by evoking the courts power to
punish for contempt. Further he has expressed that the media trial has more
negative impact than the positive.
The last chapter is titled as the impact and analysis. In this chapter the author has
analysed the role of media from pre independence till to date. The author is very
critical about the role of the media and has stated that the media should not
indulge in shallow reporting for any personal or professional gains, but only be a
neutral messenger.
(ii) The book, Cases and Material on Media Law, authored by Ram
Jethmalani and D.S. Chopra, consisting of 1675 pages, and ten chapters; is
a very exhaustive and informative text on Media Law. The authors of this
book have analyzed not only the constitutional provisions, but also almost
all the statutory provisions relating to the media law. The endeavor of the
authors was to analyze the judicial pronouncement which falls under the
legislative enactments related to media law. In this book, first and
foremost, the constitutional provisions related to freedom of speech and
expression is discussed in detail with ample case laws. The complicated
23
counters of freedom of speech and expression have been explained with
the help of case laws. A whole chapter has been devoted to the limitations
on the freedom of speech and expression. The term reasonable restriction
is discussed at length in the light of case laws. The authors have dealt with
some of the restrictions on the freedom of press at great length. The act of
defamation which occupies, a conspicuous place in the restrictions on the
freedom of speech and expression is dealt comprehensively. A whole
chapter has been devoted to defamation including the provisions of the
Indian Penal Code relating to defamation. As compared to defamation the
author has dealt with the concept of contempt of court, more exhaustively.
How contempt of court is a limitation on the freedom of press has been
illustrated by the Supreme Court cases. The restriction of the obscenity has
also been dealt in brief by the author. The concept of Trial by Media has
been handled by the authors with the help of illustrations in a very
objective manner. Further the authors of this book have explained and
analyzed no less than twenty five legislative enactments pertaining to
media law. Each statute is systematically and comprehensively dealt
with. Each provision of the statute has been stated and the amendment by
which it was inserted in the statute has been stated in the book. Even the
original statutes and the amended versions are included in the book. The
exhaustive text pertaining to the statutes reflects upon the author’s efforts
taken to write in detail the content, the sections, the substituted and
amended versions of the parts of the states.
No doubt that this book is very a comprehensive study material for the students of
Media Law. It contains the case laws as well as the statutes which are related to media
law. The remarkable aspect of this book is that it contains most of the statutes related
to Media Law. The students of Media Law can at one glance and in one text book can
find the case laws as well as the statutes pertaining to media law.
(iii) The Book Facets of Media Law, is authored by Madhavi Gorakh Diwan.
The book deals with the multiple dimensions of the various media laws
and consists of 638 pages and seventeen chapters.
24
This book in its first chapter deals with various dimensions of freedom of press,
like Right to circulate, right to receive information, right to report legislative
proceedings, right to report judicial proceedings etc. The right to freedom of
speech and expression is considered to be the offshoot of the Article 19(1)(a) of
the Indian constitution. There is a lot of scope of judicial activism, and the
judiciary has from time to time protected the freedom of press and media,
whenever there was an attempt by the legislature to wrongfully curtail the same.
This book also provides various cases laws where the judiciary has successfully
protected the rights of the press and media.
However no right is absolute and the right of freedom of speech and expression
also comes with certain limitations. In the very same chapter the limitations
imposed on the media, under Article 19(2) are also mentioned. Sometimes, the
need arises, where the judiciary has to restrict or limit the right of the press and
media in the interest of justice, a glaring example of which is the pre censorship
on cinematograph film. In the second chapter a very sensitive issue like the
morality, obscenity and the censorship is very well handled by the author. The
author does not prefer the rigid standards of the morality as laid down by the law
or by the traditional tenets. She further states that the attempts to prohibit a
publication because of indecency or immorality have adverse effect. It is difficult
in today’s era of technology, to abide by the traditional parameter of morality and
decency. The author further has given guideline to the judiciary to interpret the
laws in a liberal manner so as to expand the scope of the terms indecency and
immorality.
A number of cases regarding the contempt of court have been very well analysed
in this third chapter, the author has stated that a few criticisms on the judiciary,
will not hamper the reputation of the judiciary and its high respect. The fourth
chapter deals with the defamation. The author has dealt this chapter in great detail.
All the ingredients for the offence of defamation are mentioned. The chapter is
rich with case laws.
With the development of media, one of the most affected legal rights is, the right
to privacy. The fifth chapter deals with this aspect. According to the author, in
today’s age of communication and information, the right against which a heavy
25
prejudice is caused is the right to privacy. In other countries there are several
legislations which are intended to protect the privacy of the individuals, the law in
India to that effect is not yet developed. In this chapter, the sting operation is also
dealt with considerable detail, along with its legal implications.
The concept of Copyright has been adequately dealt in the sixth chapter. The
author has dealt with almost every aspect of copyright law concerning the media.
There are immense judgements of various High Courts on the issues of copyright.
The seventh chapter deals with cinema. In this chapter the author has dealt with
the Cinema as an instrument of exercise of right of speech and expression, right to
portray the historical events etc. The author has also dealt in detail about how the
visual medium is more influential. Various judgements and the opinion of the
judges have been analysed in a remarkable fashion. The author has not only dealt
with the Cinematograph Films Act 1952 in considerable detail, but also has at
length dealt with the concept of censorship. Madhavi Gordia Diwan has also
mentioned the regulations of the cinema halls, and has concluded the chapter with
the self regulations.
The rights of publicity have been dealt in a concise manner in the eighth chapter
of this book. The right to information constitutes the spirit of the press and the
media which occupies an important place in the book. Several statutes, which
deal with the right to information, have been briefly dealt with. The salient
features of Right to Information Act 2005, has been dealt in lucid manner. Apart
from these aspects, right to information in United Kingdom and European Court
has also been mentioned. The aspect of hoarding political advertisements and
paid news etc has been covered under the chapter of advertising.
The eleventh chapter consists of a very controversial aspect – that is the hate
speech. The comparative analysis of the legal provisions of hate speech has been
incorporated in this chapter. The issues of the parliamentary privileges along with
the leading case laws have been dealt in chapter number twelve. The author have
urged for the need for codifications in this respect. The reporting of the judicial
process has been discussed in the light of the importance of open justice rules,
which includes the concept of media trial in chapter thirteen. Media cannot
function without the system of broadcasting; hence the concept of broadcasting is
26
dealt in detail in chapter fourteen of this book. Each and every aspect of the
broadcasting from the evolution of the broadcasting till the TRAI
recommendations has been dealt exhaustively. A cursory glance has been given to
the concept of taxation on the media including the impact of taxation on the
circulation of the newspapers.
The sixteenth chapter can be considered as the highlight of the book, which
contains the emerging trends, media ethics and regulations. The last chapter that is
chapter seventeen deals with the number of statutes which can be considered as
the historical foundation of the right to media and the press
(iv) The book ‘Media Law’ written by Dr. S.R. Myneni consists of 560 pages
and is divided into five units and further sub divided into twenty three
chapters.
The first unit deals with the meaning, characteristics and history of the mass
media. It also deals with the classification where the media is classified as print
media, books, magazines, newspapers etc. Even the media such as mobiles, video
games, blogs etc are discussed. The organisational structure and management of
the mass media are also dealt here in. Along with the impact and importance of
the mass media on the people, the author has pointed out the difference between
the visual and the non visual media. The last part of the unit consists with the
number of self regulation codes.
The second unit begins with the meaning and the concept of the press. The
constitutional provision of the freedom of speech and expression, inclusive of
freedom of press, has been dealt in detail. The entire unit has been devoted to
analysing of thirty one statutes. Some statutes are dealt in detail such as The Press
and book Registration Act 1867, The Press Council Act 1978, The Contempt of
Courts Act 197. Whereas the other statutes are only dealt partially to the extent of
their relation to the concerned unit, such as the Official Secret Act 1923, Civil
Defence Act 1968, Indian Penal Code 1860 The Criminal Procedural Code 1973
etc.
The entire third unit is devoted to ‘films’. Aspects such as origin and impact of
film, role of dramas, film censorship, are dealt herewith. The Cinematography
27
Act 1952, along with the rules and orders 1961 are dealt extensively in this unit.
Further the author has dealt with cine workers welfare, many other rules and
orders related to this statute in the same unit.
Electronic broadcasting media radio and television constitute the content of unit
four of this book. The concepts of electronic broadcast media, effects of television
on the people etc are dealt here with. Government policies along with the freedom
to telecast are also dealt upon. The Prasaar Bharati Act 1997 and the rules made
there under are also dealt in the same unit.
The fifth unit deals with the right to information. The salient features of the Right
to Information Act 2005 are discussed exhaustively and extensively under this
unit.
.
28
CHAPTER—II
FREEDOM OF PRESS: THE CONSTITUTIONAL PERSPECTIVE.
“Freedom of Press is an article of Faith with us, sanctioned by our Constitution,
validated by four decades of freedom and indispensable to our future as a Nation.”
: Former Prime Minister Rajiv Gandhi
Synopsis of the chapter
1. Introduction
2. History of press
(a) Aspects related to the freedom of press
(b) Existence of Press in Pre- British era
(c) Status of press in British era.
3. Freedom of press – Constitutional status.
(a) Preamble
(b) Constitutional provision – Article 19(1) (a)
(c) Importance of Freedom of Speech and Expression and Freedom of Press
(d) Rights of press
(e) Scope of powers of the press
(f) Restrictions on freedom of press and media.
(g) Press Commissions
4. Judicial activism and the press.
5. Concluding remarks.
29
Introduction
For the democratic functioning of a society, freedom of expression has always been
emphasized as an essential and fundamental base of the society. Freedom of speech
and expression which includes the freedom of press28 is considered as the backbone of
the democratic society. The extent of the freedom press enjoyed by the press is
regarded as the parameter or credentials of democracy of a state. The Press plays an
important role because it provides all comprehensive and objective information of all
aspects of the country’s Economic, Political, Social, and Cultural aspects.
If the democracy has to be meaningful and function effectively, then a free press is a
sine qua non. Which is why very often the freedom of press is described as the
oxygen of democracy; and without which a democratic society cannot survive. It is
visibly evident, especially since Independence, a free and vigilant Press has acted as a
vital agency to curb corruption and injustice. In addition, another important role, the
press plays is to formulate the public opinion which helps on one hand imparting the
knowledge to the society and on the other hand restraining the tyrannical actions of
the government.
Right of freedom of speech and expression is incorporated in Article 19 of the
Universal Declaration of the Human Rights, 1948. It states that everyone has a right to
hold opinion without interference. This right of freedom of expression includes the
right to hold opinions to receive and impart information either orally or in writing or
in any other form through any of the agencies of the media. Article 19 of the
International Covenants on Civil and Political Rights 1976 also incorporates the right
of freedom of speech and expression. In India the right of freedom of speech and
expression is incorporated in 19(1)(a) of the Indian Constitution. This right of
freedom of speech and expression is a fundamental right in the Indian legal system.
The right to free press does not exist independently and is incorporated in the right of
freedom of speech and expression; and hence the right to free press is regarded as a
fundamental right.
The press is regarded as the fourth pillar of democracy, as it is a potent check on the
policies of the government, which are formulated with malafied intentions. The press
also acts as a means for keeping the elected officials responsible to the people who are
28 Infra; p. 37
30
supposed to serve. The press not only brings to the notice of the society, the crimes,
which otherwise would have gone unnoticed; but also plays a crucial role in initiating
legal proceedings in such crimes, thereby ensuring justice29.
The literal meaning of ‘Freedom’ means absence of control or lack of interference
from any authority; so also it means no restrictions. Here freedom of press means the
right or the liberty to print, publish, or paint without any interference from the state or
any other public authority. But according to the principles of Jurisprudence, no right
or freedom or liberty can exist absolutely without restrictions; hence freedom of press
is also demarcated by number of restrictions.30 So here freedom of press means the
liberty to print, publish, or paint within the ambit of rational and reasonable
restrictions. The whole game is that, what should be the sphere or area of freedom and
what should be the demarcating lines of that freedom. When it is said that the freedom
of press prevails, then it means that liberty of the press exists within the brackets of
restrictions. The crucial aspect is where one should draw the demarcating lines of
restrictions; and how much sphere should be allowed for the freedom of press.
1. History of the press
(a) Aspects related to the freedom of press
Expressing oneself is inherent in a human being, which is beyond the scope of any
legal parameters and hence the freedom of press in a crude form has always prevailed
since ancient times. To put it in other words freedom of press has not prevailed
because of any legal sanctions, but is born with the human being. The very first signs
of the press are visible in the writings and paintings on stones, woods and walls
several centuries before Christ. In India many great Emperors had carvings, like
Emperor Ashoka’s edicts on stone which are seen even today. After the invention of
paper, freedom of press started getting a concrete shape in the form of state records
pertaining to the messages from the spies. However this was a rudimentary form of
press. Later not only the messages were being sent, but important messages were
being sent throughout the region with the help of some crude method of
communication. Letters, bringing news are considered to be the first form of
29 Infra; p. p.136-149 30 Infra; p. 59
31
newspapers. Such letters bringing news were called as ‘Newsletters’ and were
regularly issued during the Mughal and the Hindu regime. This practice has continued
until the East India Company arrived on the soils of India.
(b) Existence of Press in Pre- British era
In India the first reference of press can be traced to the Muslim era. The Mughal
rulers used to select efficient people and hire them for reporting to them the position
of their kingdom. Such hired reporters had to send to their king, the messages
regarding the grievance of the masses and the expectations of the people. They also
had to inform to their king about the corruption and injustice prevailing in his court
and region. Even the wants, needs, necessities, desires, aspirations had to be reported
to king by such informants. So the king became aware of these issues through the
messages sent by those informants. This can be regarded as the form of press
prevailing in India. Even in those times independency of the informants (press)
needed to be secured, and hence these people were directly appointed by the king.
They were not only highly paid but also their tenure was secured as they could be
removed only by the king himself and no one else. Hence they could not be
influenced by any court officer, irrespective of his rank, and could report freely and
fearlessly. This policy played a significant role in maintaining the empire for centuries
and can be regarded as the foundation of free press.
If compared to the modern era, the press prevailing in Mughal period can be termed as
an in house circulation rather than public circulation. This in house circulation served
an important function that is, to give guidelines to the king for better administration.
Giving guidelines to the government for better governance is the most essential and
fundamental function of the press, which was fulfilled by the role of informants
during that era.
Here it is important to note that this informal press in pre-British period was not
intended for the circulation of the general public. The only purpose of this system was
to provide information to the king, and enable him for better administration. The
major difference was that such reports were not accessible to general public but were
prepared exclusively for the king.
32
(c) Status of press in British era.
It is already been seen in the previous pages that the essence of press prevailed even
before the Britishers came to India. Nevertheless, the Britishers developed the concept
of press to a great extent. The establishment of the system of press became more
refined after the industrial revolution. In 1674, the first printing press was established
in Bombay. In 1772 the second printing press was established in Madras.
In 1776 William Bolts, a former employee of the East India Company had simply
expressed his intention to start a newspaper. To further his intention he only pasted a
notice on the gates of the Council Hall intimating the people, that he had in his
possession ‘in manuscript’, and had many things to communicate which were of
utmost concern to every individual. William Bolts had to face the axe of censorship,
even before he actually started the newspaper since he was asked to leave Calcutta
and proceed to Europe.
In Calcutta first printing press was started in 1779, and the first newspaper was started
in 1780 by James Augustus Hickley, an Irish person. Hickley wanted it to be known
to the society that this paper was free from any political influence and hence he
named it as “A Weekly Political and Commercial Paper open to All Parties but
Influenced by None”. In his weekly, Hickley had criticized the policies of Lady
Warren Hastings. Warren Hastings was the then Governor General of India. He
immediately used his powers and issued an order for seizure of the printing types.
Thus in March 1782 the paper was closed. The life of this paper was very short
because the executive authority had cut the throat of freedom of press. The battle
between the free press and its suppression by the executive authority has become the
bone of contention since then till to date.
For the first time the censorship was introduced in the year 1795. The classic example
of the pre censorship can be seen in the case of the ‘Madras Gazette’, wherein it was
asked to submit to the Military Secretary all the general orders of the Government for
censorship before publication. The British Government resorted to three methods to
curb the right of free press.
(i) Pre-censorship
(ii) The denial of postal privileges
(iii) Deportation of the editor and publisher.
33
The first Regulations of censorship were promulgated by Marquess of Wellesley
which continued until 1799. The Wellesley regulations involved the following aspects
(i) It required the newspapers to print the names of the printers, publishers
and editors.
(ii) It also required to submit all the material for pre-censorship by the
Secretary to Government of India.
Warren Hastings abolished all these above regulations.
The Bengali newspaper Samachar Darpan was published in 1818. The year 1822 is a
landmark year because the Bombay Samachar was published in this year. The
Bombay Samachar is very famous and is still prevalent today and is the oldest
newspaper in Asia.
The main focus of the Indian newspapers was in those days was mainly the following
(i) To unite the Indians and form groups
(ii) To awaken the notions of nationalism among the Indians.
(iii) To inspire the people to join the freedom movement.
(iv) To highlight and criticize the discriminating policies of the British
Government.
(v) To demand the civil rights for the Indians.
The paper Indian Mirror was in line with the above objectives and was popular. Girish
Chandra Gosh started the newspaper, Hindi Patriot which strongly demanded the
appointment of Indians at high posts. The proprietors of Amrita Bazzar Patrika which
was a weekly, were tried and convicted for sedition because it was very critical of the
policies of the government.
British rulers imposed a number of legal restrictions on the press mainly to curb the
freedom movement. As J. Natrajan says, “the first two decades of the 19th century saw
the imposition of a rigid control of the press by Lord Wellesley and Warren
Hastings31.” The newspaper regulations not only controlled the circulations but even a
strict watch on the content of newspapers was kept for example the Adams
Regulations of 1818 controlled the content of the newspapers. Crown rule in India
also imposed restriction on newspapers.
31 Jain M.P ., Legal History
34
Gangadhar Bhattacharya started the first Indian owned newspaper, the Bengal
Gazette. Inspired by this newspaper, several newspapers were published, and hence
the press had started making rapid strides. Vernacular papers started receiving wide
appreciation and readership like Urdu and Persian papers in north-west India, the
Marathi in Maharashtra, and Gujarati in Gujarat press had started to make their
presence felt. By 1850, newspapers in Hindi and Malayalam, Kannada, Tamil,
Oriya, Assamese and Punjabi appeared.
The 1857 revolution had tremendous limiting impact on the freedom of press in
British India.
Lord Lytton, knew that the foundation of the freedom movement was the press and
was worried over the increased impact of the writing in the press, especially the
language press. Hence he passed the draconian legislation to almost uproot the right
of free press. With this view he enacted the Vernacular Press Act on March 1, 1878.
This Statute came down heavily on the press. Under this regulation, any District
Magistrate or a Police Commissioner was empowered to take any of the following
action
(i) To force the printer and publisher of a newspaper to agree not to publish
certain kinds of material,
(ii) To demand security,
(iii) To confiscate any printed matter, if it was deemed to be objectionable.
Because of such wide powers granted to the District Magistrate and also to police
commissioners, The Vernacular Press Act, 1878 was the greatest blow to the freedom
of the Press in India. This is why the Vernacular Press Act has been nick named as the
Gagging Act, as it gagged the voice of the free press.
In the later years the freedom of press had to face a lot of hurdles because of many
legislations passed by the British government. To name a few - Sections 124-A and
505 of the Indian Penal Code, 1860, the Press and Registration of Books Act, 1867
the Indian Official Secrets Act, 1889.
A famous leader of Maharashtra, Mahadev Govind Ranade, awakend the
consciousnesss of downtrodden masses by writing in Gyan Prakash as well as in
Indu Prakash. In 1881, Bal Gangadhar Tilak started another Marathi weekly, Kesari
which became very famous. Another weekly journal, Maratha in English, was started
35
by Tilak along with Agarkar and Chiplunkar. Nam Joshi the editor of the 'Daccan
Star' also joined them and his paper was incorporated with Maratha. In his paper,
Tilak wrote very strongly against the British government and Diwan of Kolhapur.
Hence Tilak and Agarkar were convicted for such writings. Tilak's Kesari became one
of the leading newspaper to propagate the message of swaraj movement. Kesari
highlighted the anti-partition movement of Bengal and presented it as a national
issue. The Sedition ordinance was also opposed in 1908 by Tilak, and hence he was
exiled from India for six years. Later Hindi edition of Kesari was started from Nagpur
and Banaras32.
As the revolts against the British government were on the rise the British government
wanted to put its axe on the ambit of freedom of speech and expression. With the
object to curb the revolution movement, Lord Morley Minto had promulgated the
Newspapers (Incitement to Offences) Act 1908. This ordinance empowered the local
British Authorities to penalise the editor of a newspaper who published such matter
which would constitute an incitement to rebellion.
From the above discussion it is evident that the British government exercised stringent
control on the freedom of press to retain their power and to restrain the freedom
movement. It is to be noted that the British Government was in the favour of
curtailment of freedom to press; because it wanted to curb, prohibit and suppress the
independence movement.
2. Freedom of press – Constitutional status.
Every legal system is founded on constitutional principles. The same is true with the
Indian legal system, as it is based upon the Indian Constitutional law. To put it in
other words, every right, liberty, power, immunity or liability has to be rooted in the
constitution, only then, it can be invoked. Similarly freedom of press has been
incorporated in the constitution and hence this right can be invoked by the citizens of
India.
The constitution of India incorporates the freedom of press in two aspects.
(i) Preamble
(ii) Article 19(1)(a)- Right to freedom of speech and expression 32 http://www.congress.org.in/new/role-of-press.php
36
(a) Preamble
The Indian Constitution opens with the preamble. The preamble is considered to be
the essence and the spirit of the Constitution, and hence it is considered to be a very
vital part of the Constitution.
The citizen is guaranteed the liberty of expression by way of Preamble of the Indian
Constitution. It states that the citizen has the liberty of thought, expression, belief,
faith and worship. The liberty of thought and expression includes the right of free
press. The right to free press is impliedly included in the ambit of liberty of thought
and expression. The aspect of human liberty is regarded as the cardinal principle of
human life, hence liberty occupies a special place in the Indian Constitution.
Similar provision regarding the freedom of the press was already included as part of
freedom of speech and expression under the Article 19 of the Universal Declaration of
Human Rights (1948). The heart of the Article 19 says that everyone has the right to
freedom of opinion and expression, this right includes freedom to hold opinions
without interference and to seek, receive and impart information and ideas through
any media and regardless of frontiers.33The freedom of press in India is on similar
lines of Article 19 of the Universal Declaration of Human Rights (1948). It is to be
noted that freedom of press was considered to be so important by our founding fathers
that it found place in the preamble itself.
(b) Constitutional provision – Article 19(1) (a)
After independence when the new constitution was being framed, the question before
the framers of the constitution was that, whether to have a separate legislation just like
the first amendment of USA34, or to follow the English way, where freedom of press
is included in freedom of speech and expression. Chairman of the Drafting
committee Dr. Babasaheb Ambedkar strongly argued that “The press is merely
another way of stating an individual or a citizen. The press has no special rights
which are not to be given or which are not to be given or which are not to be
exercised by the citizen in his individual capacity. The editors of press or the manager
33 Manoj Kumar Sadual, Freedom of Press in Indian Constitution: A Brief Analysis, International Journal of Applied Research 2015; 1(8): 194 -198 34 The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition
37
are all citizens and therefore when they choose to write in news paper they are merely
exercising their right of freedom of speech and expression and in my judgment
therefore no special mention is necessary of the freedom of press at all.”35
In India therefore there is no separate law relating to the press prevails, and the same
is protected under Article 19(1) (a) of the Constitution of India.
Article 19(1) (a) guarantees six freedoms in all, which are as follows.
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) Right to property (deleted) now incorporated in Article 300A.
(g) to practise any profession, or to carry on any occupation, trade or business 36
One of the fundamental principles of jurisprudence states that for any right to be
effective has to be bridled with limitations, and so is the case with six freedoms. So
Article 19(1) confers six freedoms on the citizens, and from Article 19(2) to 19(6)
limitations are imposed on the six freedoms mentioned in Article 19(1)37.
Freedom of press is impliedly included in the freedom of speech and expression under
Article 19(1)(a) of the Indian Constitution. Some legal experts have opined that there
is a hairline difference between the four notions of, right to speech, right to
expression, right to freedom of press, and right to information.
For the perusal of academic interest let us examine the subtle difference between
these four aspects.
35 Constituent Assembly Debates, Vol. VII p 780 (2nd December 1948) 36 http://indiankanoon.org/doc/1142233/ 37 Infra;p 59
38
(i) Freedom of speech
Freedom of speech essentially denotes the ability to communicate the ideas and
information to other persons. The wide meaning of freedom of speech includes
freedom of writing, speaking, printing, or publication.
(ii) Right to expression.
Right to expression is a very broad term and includes many aspects such as all
actions of expression which include speaking, writing, printing, singing, dancing,
painting, carving etc. It is true that right to expression is very broad, and may
include right to speech.
(iii) Freedom of press
Freedom of press includes right of printing and publishing. It means that
individual expresses his views in the form of printing. Hence freedom of press
includes freedom of speech which is expressed in the form of printing and
publishing. The essence of freedom of press lies in the wide circulation and its
access to mass media. In the cases of newspapers, or journals, television or radio
network, the managers or the proprietors have the last word in the broadcasting or
publishing the contents.
(iv) Right to information
Right to information is at right angle with the freedom of speech and expression.
The right to information is not concerned with the aspect of expressing that is
giving but emphasis on gathering or taking information. So the right to
information deals with the aspect of getting access to information. The term
“Freedom of information” was invented by United States. The right to information
is incorporated in the freedom of information Act. A similar provision prevails in
Canada under the Access to Information Act. In India, the right to information is
an upcoming right, incorporated in the Right to Information Act 2000.
These four terms are neither synonym of each other nor are they completely
distinct from each other; but they are correlated to one another. The core is the
39
freedom of speech, and the fringe is freedom of expression which includes
freedom of speech. The freedom of press includes both freedom of speech and
expression, whereas the right to information overlaps to a certain extent over the
right to freedom of press.
(c) Importance of freedom of speech and expression and freedom of press.
Freedom of speech and expression is an essential aspect of liberty as stated in Maneka
Gandhi v Union of India.38 The founding fathers of the Indian Constitution have laid
much importance on the fact that freedom of speech and expression should be one of
the fundamental rights of an individual. So they have placed the freedom of speech
and expression in the Article 19(1)(a) which is a constituent part of the chapter on
fundamental rights incorporated in the Indian Constitution. There are six freedoms
secured in the Article 19(1)(a), and the freedom of speech and expression is ranked
first among the six freedoms incorporated in the said Article of the constitution. To
express oneself, is an inborn instinct of every human being, and it would not be wrong
to say that deprived of freedom of speech and expression a human being would not be
a human being. Speech and expression is not only the liberty of an individual but it is
one of the basic necessities of the human being. It is because of speech and expression
that the human being can not only be developed but also are capable of expressing
other emotions and feelings. The freedom of press is one of the most important
agency of communicating one’s speech and expression. Hence the freedom of press
performs very vital functions of the society.
(i) The freedom of press is denoted as the backbone of the democracy. This is
the most basic functions performed by the freedom of press. It is because
of the freedom of press that the democracy survives. Democracy means the
government of the people, by the people and for the people. The press
makes it possible for the government to know the moods and necessities of
the people. Simultaneously the press communicates to the whole society,
the intention, policy and measures of the government.
38 AIR 1978 SC 597
40
(ii) The press is considered to be the most influential medium of
communication, because of its very wide horizons. That is why freedom of
press is a very precious freedom.
(iii) The freedom of press assists to uncover the truth.
(iv) The press today is considered as an instrument of imparting education.
(v) The press helps in creating, moulding and commuting public opinion. That
is why the press is considered to be an instrument of change.
(vi) As the press makes the government action public, it is responsible to make
the government officers responsible and accountable.
(vii) The press plays the role of public vigilance and acts as effective checks on
the malpractices and corruption, not only on the government officers but
also on the private individuals.
(viii) The language press strengthens the bonds of the community within the
state and thus helps in achieving stability and solidarity in the nation.
(ix) The press and the digital media are very useful and popular because they
deliver and circulate accurate news at a lightning speed.
(x) Last but not the least the press and the media act as an eye opener of the
society.
(d) Rights of press
Before one moves to the intricate issues of the freedom of press, one has to have clear
understanding of the word press. The word press has got two meanings as follows:
(i) The core or common meaning – strict interpretation
(ii) The wider horizon of the word press.
(i) The core or common his meaning – strict interpretation.
The core meaning or the common meaning of the word press means the
printing press. It includes all the physical aspects of the printing press. It
is clear from this meaning that is very narrow meaning or a very strict
interpretation of term press. This meaning is not sufficient to understand
the various aspects of the freedom of press; so one has to turn to the
wider meaning of the term press.
(ii) The wider horizon of the word press
41
The word press in its wider perspective includes all printed material
printed in the printing press, like newspapers, journals, magazines,
periodicals, pamphlets, leaflets, books, handbills, documents or any
other printed material. Further the term press includes within its ambit
agencies, feature agencies, press and syndicates,
Newspaper constitutes a major part of the term press. Newspaper is sometimes used
as a synonym for press. The tussle between the freedom of press and the restrictions
imposed by the state is due to this newspaper which is considered as a vital ingredient
of press.
The term ‘Newspaper’ includes “any printed periodical work. It includes the
following;
(i) Public news
(ii) Criticism, comments or analysis of public news
(iii) Statements of facts or the interpretation of facts
(iv) Opinions of various people or opinion through editorials
(v) Advertisements
Newspaper performs extremely important functions in the society such as
(i) Imparting and circulating news
(ii) Creating and moulding of public opinion
(iii) Imparting education and is considered to be a source of enlightenment.
(iv) It is source of entertainment
(v) It is considered as a medium of advertisement and publication39.
Since the newspaper performs these vital functions it is considered as the life
of the society. As the newspaper creates and moulds the public opinion, it is
considered to be a very very powerful instrument in the hands of the editor or
the publisher. So the first aspect of the press is occupied by the newspapers.
Since freedom of expression includes the freedom to proliferate one's own views as
well as of others.40 It also includes communicating those views to others. Freedom of
the Press includes the following rights;
39 Dr. S.R. Myneni, Media Law, (Asian Law House,2013),pp.32-37 40 Express News papers v. Union of India. AIR 1958 SC 578 (614)
42
(i) Printing and publication of news. In Re Daily Zemmedar41, it was stated by the
judiciary that the printing and publication of the news was the essential right
of the press. Further it was also stated by the court that it is the right of the
press to print the facts of contemporary history42
(ii) The second right of the press includes to print views or opinions. The Supreme
Court of India has laid down in Gopal Dass v. D.M43 the freedom of press
includes printing of editor’s or author’s views. Further the Supreme Court has
also held in Sharma v. Srikrishna44 that printing of views not only includes the
editors or authors views but also the views of any other people who have
printed the views under the directions of the editor, author or the publisher.
(iii) The right to free press not only includes to publish views but it also includes
to dispense and circulate those views in the entire society as was decided in
Romesh Thappar, v. State of Madras45
(iv) The freedom of press includes within its ambit the right to discuss and publish
the views pertaining to such information which is necessary for the members
of the society to cope up with any urgent need or demand of that period. This
information may not be related to any political or public matter or issues46.
(v) Another dimension of the right to press includes the right to comment on
public affairs as was stated by the Supreme Court in Bennett Coleman v. State
of J. & K.47 This right to comment on public affairs includes the right to
criticize people holding public post and also to criticize the public
policies.48This right also includes the right to analyse and to criticize not only
the Government, but also its policies such as the defence policies and even the
conduct of the Armed Forces 49 . However this right of criticizing the
41 AIR 1947 Lah 340 42 Ibid. 43 AIR 1974 SC 213. 44 AIR 1959 SC 395 45 (1950) SCR 594 46 Thornhill v, Alabama, (1950) 310 US 88 (102); Time, Inc., v, Hill, (1967) 385 US 374 (388) 47 (1975) Cr LJ 211 48 Baumgartner v. O.S., (1944) 322 US (673-74)s 49 Hartzel v. U.S. (1944) 322 US 680 (690).
43
government policies has got a severe limitation that is , it should not endanger
the national security.50 Now dealing with the Indian situation, this right is not
permitted in ordinary situations, in other words it is reserved by virtue of
section 124A, of the Indian Penal Code.
(vi) The corollary right of gathering information is the right to get access to the
sources of such information. The Supreme Court has clearly stated in Prabha
v. Union of India51 that the right to collect information would be meaningless
if the right of access to the sources of such information would not be granted.
The right of access to the sources of such information is not without limitation
and it has been stated by the judiciary in Branzburg v. Hayes52, that the press
does not have a constitutional right of access to secret information. Further the
court in Pell v. Procunier53 held that the government is not under any duty to
give access to the sources of such secret information to any person from the
press.
(vii) The press also enjoys one very potent right that is to collect the
diversified information from hostile sources on the ground of competitive
market. In such a situation press is free from any monopolistic control from
the government as has been reiterated by the Supreme Court of India in many
cases54.
(viii) The last is the residuary right of the press which includes refraining
from publishing any news or any matter or any other co related matter to any
news. The freedom to publish any news includes the freedom not to publish.
So also this right includes declining to publish any news under the dictation of
any authority. It also includes the right to publish any matter according to the
newspapers policy and plan. This residuary right also includes the power of
50 Gravel v. United States, 408 U.S. 606 (1972) 51 AIR 1982 SC 6 52 (1972) 408 US 665 53 (1974) 94 S Ct 2800 54 Express Newspapers v Union of India, (1959) SCR 12: Himmat Lal v . Police Commr. AIR 1973 SC 87: Associated Press v. US. (1945) 326 US 1
44
the press to organize its activities and formulate its plan for publication in
respect of its readers, its address and to set the price of the paper.
However the government does not allow the press to use its residuary power
very often, and tries to impose some restrictions or limitations.
The rights which are enumerated above can be regarded as very essential
rights of the press. For the press to survive and healthily flourish, the rights of
the press have to be protected. It must be remembered that a free press is a
sign of a good, progressive and democratic society. Hence the press and all its
attributes must be secured and protected to the maximum extent. But it is also
true that the press must not be left without fetters on its freedom otherwise the
chances would be that the press oversteps its powers and causes injustice.
(e) Scope of the powers of the press
According to Hohfeld 55 , rights in the wider sense include powers, immunities,
privileges and liberties. These powers which are enumerated in the forthcoming pages
can be describes as rights or immunities, privileges or liberties
It is true that there is no separate freedom for press in the Indian constitution. But it is
not the case that the press and media do not get any rights. On the contrary, various
rights of press are not only recognized, but also protected. It is the judiciary who
protects the rights of the press and media through its various thoughtful judgments.
The judiciary has time and again upheld the freedom of expression of media from the
arbitrary actions of the state who has tried to curtail the freedom of press taking
various defences.
The difficulty in protecting the press is that, there are various components of press,
these components cannot be limited, and the new components keep on evolving with
the development in technology. Though it is not possible to discuss all the
components, a few are discussed.
(i) Power to circulate the information:
This right is the cornerstone of freedom of press. The freedom of press will
not be of any significance without this right. Without the right to circulation, 55 Dias RMW; Jurisprudence.,(Butterworth&co.1994)
45
one cannot say that the freedom of expression is being enjoyed at all. For the
press this right is of great significance. It is through circulation that the press
reaches to the masses. The right to circulation was implied in the right to press
and no specific mention was felt necessary, till the case of Romesh Thapar v
State of Madras.56 Romesh Thappar, the publisher, editor and the printer of an
English Journal called Cross Roads had printed in his journal very critical
appraisals of the policies of the Nehru government. So also the journal Cross
Roads was known for its critical and leftinian approach. At the same time the
Madras Government had declared the Communist parties illegal. In this
background the government of Madras under section 9(1-A) of the Madras
Maintenance of Public Order Act, 1949 imposed a ban on circulation of ‘Cross
Roads’. Romesh Thappar filed the petition in the Supreme Court of India. He
stated that his right to freedom of speech and expression guaranteed under
19(1)(a) of the Indian Constitution was violated by the Madras Government by
imposing the ban on his movement of circulation of his journal. The question
before the Court was:
(i) Whether the freedom of speech and expression of the petitioner was
violated by the Madras Government’s actions of imposing the ban?
(ii) Whether the ban imposed by the Madras Government was justified under
the limitations enumerated in Article 19(2) of the Indian Constitution?
(iii) The Madras Government could issue a ban on the circulation only for
public safety under the Madras Maintenance of Public Order Act, 1949;
however Article 19(2) does not contain the phrase public safety or public
order. Hence whether the ban falls within the purview of Article 19(2) of
the Indian Constitution.
The Argument of the government was this that the ‘public safety’
mentioned in the Madras Maintenance of Public Order Act, 1949 was
relating to the security of the province, thereby meaning the security of the
state. Hence it would be covered by the ambit of Article 19(2) which also
speaks about the security of the state.
The Supreme Court held that the state within the meaning of Article 12
does include the provinces, but the phrase public safety would not fall
56 AIR 1950 SC 124
46
within the scope of security of the state. Public safety would deal with
much minor matters and cannot be said to include grave issues relating to
the security of the state. It further stated that, for a law to be valid
according to Article 19(2) should be to protect and preserve the security of
the state and not just for public safety. Therefore it follows that the Act
imposing the ban falls outside the scope of the restrictions mentioned in
Article 19(2). The consequence being that the action of the government to
impose the ban was hit by Article 19(1) and hence was void and
unconstitutional. The Supreme Court further clearly stated that the
freedom of press includes the right to circulate. It is opined here that first
of all the freedom of press is implied in the freedom of speech and
expression and secondly the right to circulation is implied in freedom of
press. Therefore Romesh Thappar’s case becomes the landmark judgment
as it makes the right to circulation somewhat explicit.
This was further endorsed by the Supreme Court in the Sakal News papers
v Union of India57 wherein the court has expressly held that any law which
curtails the sphere of circulation of papers would be deemed as a clear cut
violation of the fundamental right of freedom of speech and expression
incorporated in Article 19(1) (a). The court in this case struck down the
Newspaper (price and pages) Act 1956 as this Act empowered the
government to regulate the space for advertisement. It further stated that
such an action of the government would have disastrous effect on the
circulation of the paper and is violative of Article 19(1) (a) of Indian
Constitution.
(ii) Power to project criticism.
The right to criticize is of such a nature that one cannot survive without it and
neither can one bear it. This right is a very potent right and has to be exercised
with utmost care and caution. On the basis of this right the press gets the
authority to criticize the government, its officials, its policies or its plans.
However the press cannot take undue advantage of this right and cannot entice
57 AIR 1962 SC 305
47
the people against the government or cannot lay foundation for any rebellion
or mutiny or insecurity of the state or the government. In such a case the press
would be acting outside the scope of its constitutional right of freedom of
speech and expression.
On the other hand the government should be open and appreciate the
criticisms projected by the press. So also the right to criticize of the press
helps the society to know the demerits, faults or the shortcomings of the
government. In other words, this right acts as an eye opener to the society. In a
healthy society on one hand the right to criticize should be exercised fairly,
rationally, and objectively by the press and on the other hand the government
should accept the criticisms with an open mind and make an attempt to
improve upon them.
(iii)The power to receive information
The entire spirit of the Article 19(1)(a) will collapse if the right to receive the
information is not granted. The role of the media is to empower the masses by
knowledge, but if the right to receive information is taken away then, the press
cannot empower the citizens with knowledge and the society will fail to keep
pace with the changing world.
(iv) The power of press to conduct and hold interviews.
The press has this right to conduct interview. However this right is not
absolute. There are three limitations imposed on this right
(i) The interview will only commence if the interviewee gives his consent.
(ii) The interview shall stop on the will of the interviewee. After the
famous Ramleela Maidaan episode where Baba Ramdeo was lathi
charged, when he gave the interview for the first time after the
incident, after some time, Baba wanted to stop, but the interviewer had
some questions. The interviewer could not ask because of this
limitation.
(iii) The interviewer cannot compel the interviewee to give any answer,
which the latter does not want to answer.
48
(v) The power to report the court proceedings.
According to Bentham ‘publicity is the very sole of justice’58. Benthem has
said this because he felt that, if the government is allowed to function in a
secretive manner then there is lot of scope for the miscarriage of Justice.
Therefore all the actions of the government including the judicial proceedings
have to be made public or transparent. When the court proceedings are held in
the open there is less scope for any bias to prevail. Hence any individual as
well as the press can attain the court proceedings. The only difference between
the individual and the press is that the press enjoys more liberty or rights as
compared to the individuals. The press enjoys the privilege of sitting in the
press bench and also receives any information regarding any proceedings on
account of the citizens right to be informed on matters of public importance.
The Supreme Court in Sahara India Real Estate Corpn ltd v SEBI59 has held
that there is no doubt that it is the media’s right to report the proceedings of a
case and the superior courts could not postpone the said reporting of the case
for some duration without reasonable cause or in the interest of justice.
In Saroj Iyer v Maharashtra Medical (Council) of Indian Medicine60, the court held
that the right to publish a faithful report of the proceedings witnessed is available
even against quasi judicial tribunals.
As far as the proceedings in camera are concerned the judiciary is of the firm opinion
that the power to exercise the proceedings in camera has to be sparingly used and
that too with great care and caution. So also the court in Naresh Shridhar Mirajkar v
State of Maharashtra61 has held that the power to hold the proceedings in camera
should be invoked only if the court is satisfied; that, it would result in injustice if the
matter was tried in the open court.
(vi) The power to attend and report legislative proceedings.
Article 361 of the Indian Constitution confers the right of publishing a true
report of the parliamentary proceedings. The limitation of this right is that the
58 Scot v. Scot 1913 AC 417 59 AIR 2012SC 3829 60 AIR 2002 Bom 97 61 AIR 1967 SC 1
49
publication of these legislative proceedings he should not be done with
malicious intentions. This right of reporting the legislative proceedings has
been frequently curtailed by the legislative privileges and contempt of
parliament. Hence right of reporting the legislative proceedings is
circumscribed by the legislative privileges as is evident in the Searchlight
case62. In this case the editor of the searchlight had published the portion of
proceedings of the Bihar state assembly. The Supreme Court held that the
publication amounted to the breach of parliamentary privileges and hence the
publication was held to be illegal and malicious. Further in re powers,
Privileges, and Immunities of State Legislatures case63 The Supreme Court
held that the parliamentary must be subject to the fundamental rights of the
citizens. Where the right of speech and expression which includes the right of
reporting of legislative proceedings is in conflict with legislative privileges,
the right of speech and expression shall prevail over the legislative privileges.
Today in the scene of mandatory live telecast of the legislative proceedings,
the concept of legislative privileges really remain a question.
(vii) The power to act as an advertising medium.
The businessmen or traders who advertise are no different than the newspaper
or media who also work with profit motive.
However in Hamdard Dawakhana v Union of India64 The Supreme court held
that advertisement were made with intention to have commercial gains hence
they cannot avail the benefit of freedom of speech and expression. The Court
observed: Freedom of speech goes to the heart of the natural right of an
organized freedom loving society to’ impart and acquire information about
that common interest’. If any limitation placed which results in the society
being deprived of such right then no doubt it would fall within the guaranteed
freedom under Article 19(1) (a). But if all it does it deprives a trader from
commending his wares, it would not fall within that term65 Hence it was held 62 AIR 1959 SC 395 63 AIR 1965 SC 745 64 AIR 1960 SC 554 65 Ibid, para 18, p 564.
50
that the right of advertisement was not covered by the right of freedom of
speech and expression.
Till the case of Tata Press v Mahanagar Telephone Nigam66 the advertisements were
kept out of the purview of free speech. One thing is noteworthy here is that the
advertisement was just like a newspaper or other media which is involved in profit
making. Still the right to advertisement was not granted the protection of Article
19(1)(a). However after the Tata Press case, it was acknowledged by the Supreme
Court that even advertisements were covered under Article 19(1)(a) of the
Constitution.
In the instant case it was the MTNL who was publishing and circulating the
telephone directory with white pages up to 1987. After 1987 the contracts were given
to outsiders to publish its directory, the outsiders were allowed to publish their
advertisement in directory and earn income.
The Tata Press Ltd also published the Tata Press Yellow Pages. The MTNL and the
Union Government filed a case before the Bombay Civil Court that it has a monopoly
in printing and publication of list of telephone subscribers and that Tata Press Ltd. has
no right to do the same. It was pointed out that Tata Press was violating the provisions
of the Indian Telegraph Act, 1885. The court rejected the MTNL plea and an appeal
reached the High Court. The High Court ruled in favour of MTNL, following which
Tata Press Ltd challenged the High Court’s decision before the Supreme Court. The
Supreme Court ruled that the MTNL has no right to hold back Tata Press Ltd. from
publishing ‘Tata Yellow Pages.’67
This case changed the approach of the court towards the advertisements. The courts
then incorporated the right to advertisement as a part of freedom of speech and
expression.
66 (1995) 5 SCC 139 67 http://www.lawisgreek.com/constitution-india-advertisements-and-freedom-speech
51
(viii) The power to Broadcast
21st century witnessed the rapid growth of the technology and along with the
technology the concept of broadcasting also emerged. Right of broadcasting was also
considered to be the part of free speech and expression.
In general, to broadcast means to cast or throw forth something in all directions at the
same time. A radio or television broadcast, is a program, they are transmitted over
airwaves for public reception by anyone with a receiver tuned to the right signal
channel.
The term is sometimes used in e-mail or other message distribution for a message sent
to all members, rather than specific members, of a group such as a department or
enterprise. 68
Types of electronic broadcasting
There are different types of electronic media broadcasting, some of them are
mentioned below.
One of the earliest forms of electronic broadcasting was the telephone
broadcasting. The telephone broadcasting had started somewhere around the
year 1881. In 1881 a French inventor Clément Ader invented a system of
Théâtrophone ("Theatre Phone"). By this system the subscribers listened to the
live opera and theatre performances over telephone lines. This was a very
elementary method of broadcasting. Later in the year 1890, newspapers were
also were broadcasted with the help of telephones. Such telephones-based
subscription services were the first examples of electrical or electronic
broadcasting. This telephone-based subscription offered a wide range of
programming.
The radio broadcasting on experimental basis started from 1906 and started
operating on commercial scale from 1920. the radio broadcasting is an audio
(sound) broadcasting service, broadcast through the air as radio waves from a
transmitter to an radio antenna and, thus, to a receiver. Stations can be linked
68 http://searchcio-midmarket.techtarget.com/definition/broadcast
52
in radio networks to broadcast common radio programs, either in broadcast
syndication, simulcast or sub channels.
The experiments regarding the televisions had commenced from 1925 and
after about six years that is in 1930s the production of television on
commercial scale started. The medium of television was long awaited by the
people and soon it became very popular among the general public. In short
span of time the television was competing with its older sibling that is radio-
broadcasting.
In the year 1928, the Cable radio also termed as "cable FM", started. In the
year 1932 cable television commenced. Both cable radio and cable television
were transmitted via coaxial cable. Both served principally as transmission
mediums for programming produced at either radio or television stations. At
that time the production of cable-dedicated programming was limited.
Before 1974 there was no direct-to-home broadcasting, and studio network
uplinks and downlinks had to be used. In 1974 Direct-broadcast satellite
(DBS) came into vogue. It was a mixture of traditional radio or television
station broadcast programming and the internet radio-webcast programming.
In todays time the electronic broadcasting has made tremendous progress and
visible in the forms of cable television, direct to home telecast, mobile
networks, wifi etc. These forms of electronic broadcasting are serving the
society by receiving and imparting the information and hence have
tremendous utility.
Even the films were the part of freedom of speech and expression. In Bobby Art
International v Om Pal Singh Hoon69 The Court held that the film must be judged in
its entirety from point of view of its overall impact.
The Court however has clearly accepted the fact that though the motion picture is
nothing but a medium of speech and expression, still it has to be kept on different
footing. In case of K.A Abbas v Union of India70 The petitioner had challenged the
validity of prior censorship of the films. Under the Cinematograph Act the films are 69 (1996) SCC 1 70 AIR 1971 SC 481
53
divided into two categories, one is ‘U’ and other is ‘A’ ‘U’ is for general public, while
‘A’ is for adults only. The petitioner’s movie was given ‘A’ certificate. The
contention of the petitioner was that, the film was nothing but a medium of speech
and expression. There are other means of speech and expression also but none of them
have any prior restraint, and hence there should be equality of treatment.
The court rejected the contention of the petitioner and held the pre- censorship of the
films valid; the court was of opinion that the films have to be treated separately as the
motion pictures could stir the emotions more deeply in the heart than any other art. 71
(f) Restrictions on the freedom of press and media.
According to Hohfeld every right has a corresponding duty. It means that if ‘A’ has
the right of freedom of speech and expression, then others have the duty not to
commit any act which would prohibit ‘A’ from exercising his speech and expression.
This is absolutely true because if the duties are not performed then the rights cannot
prevail. Another parallel principle of jurisprudence which prevails is that no concept
can exist without limitations. To put it in other words every legal concept is
demarcated by limitations or restrictions. The role of restrictions is very important
for the individuals as well as the state. The functions of limitations or restrictions are
twofold.
(i) When the scope or the sphere of the right is demarcated by limitation then the
individual gets a clear idea about the extent o his right. That means he knows
what he can do and what he cannot do.
(ii) The second function of the limitation is that the state can restrict the
individual’s action which is beyond the scope of the right. The limitations or
the restrictions in such a case amount to the power of the state to curtail the
right which is exceeding its scope.
Under the Indian Constitution right to six freedoms are enumerated in Article
19(1), and the restrictions are mentioned from Article 19(2) to 19(6). So
actually Article 19 on one hand confers the rights to the individuals under
Article 19(1), and on the other hand Article 19 confers power to the state to
71 http://en.wikipedia.org/wiki/Broadcasting
54
curtail these rights under 19 (2) to 19(6). So Article 19 simultaneously
confers the right and powers to take away the right. The best method to
understand the nature and scope of a right is to understand the restrictions or
limitations placed on that right.
Reasonable restriction
The right to freedom of speech and expression is limited by the restrictions imposed by
that right, and the restriction imposed by the state is also curtailed by the factor of
reasonability. So even if the state is empowered to restrain the freedom, this
restraintment is not absolute and is subject to the limitation of reasonability. So every
restriction has to be reasonable restriction to be valid under the constitution.
The Supreme Court in Papnasam Labour Union v. Madura coats Ltd72 has laid down
the reasonability of the restrictions under Articles 19(2) to 19(6).
(i) The restriction in order to be reasonable must not be excessive that is,
it should not go beyond the need to avoid the mischief or injustice. It
should not be arbitrary.
(ii) The restriction should have a direct or proximate or reasonable
connection or link between itself and the object sought to be achieved.
(iii) The restriction to be reasonable should not be abstract. But no fixed
principles can be laid down and the standards of reasonability would
vary from case to case and time to time.
(iv) While interpreting the term reasonable, the court should keep in mind
the complex issues of the society and the intention of the legislature of
the statute in question.
(v) The term reasonable is of dynamic nature and hence the judiciary
should keep an elastic and practical approach while interpreting the
term.
(vi) It is imperative for the court to analyse the social control before any
restrictions can be imposed on the fundamental rights.
72 AIR 1995 SC 2200
55
(vii) For the interpretation of term reasonable, it is necessary for the court
to examine the social welfare and the need of prevailing social norms
and values.
(viii) The word reasonable has to satisfy the test of procedural reasonability
as well as substantive reasonability.
(ix) For a restriction to be reasonable must be in conformity with the test
of Article 14 of the Constitution. It means the restrictions should not
be excessive or discriminatory.
(x) While interpreting the term reasonability the courts have to keep in
mind the Directive principles of the state policy.
The restrictions mentioned under Article 19 (2) are as follows:
(i) Sovereignty and integrity of the state.
This ground was inserted by an amendment to curb the tense reaction of the people,
who were demanding separate entity of the different regions of India.
Any speech or any expression made in any form which tries to damage the
sovereignty or integrity of the state would be covered by this restriction. The right of
speech and expression cannot be exercised to prejudice the sovereignty or integrity of
the state. It is important to make a note of an important fact that ‘sedition’ is not a
ground of reasonable restrictions incorporated in Article 19(2) of the Indian
Constitution.
(ii) Security of the state
The freedom of expression cannot be exercised in such a manner so as to endanger the
security of the state in any way. Any speech which incites the people to be rebellious
or to cause a mutiny would be hit by this restriction.
In State of Bihar v Shailabala Devi73 The Supreme Court held that the speeches made
by individuals which encouraged and incited the people to commit crimes like
murder, dacoity, robbery etc would definitely endanger the integrity of the state.
73 AIR 1952 SC 329
56
Hence such a speech would amount to prejudicing the sovereignty or integrity of the
state, and the order of ban would be covered by reasonable restrictions.
(iii) Public Order.
The word public order was inserted by Constitutional (First Amendment) Act 1951.
This clause was inserted to reduce the effect of Romesh Thappar v State of Madras74,
where the court had held that the right to circulation is a part of Right to freedom of
Speech and expression.
The term Public order has a wide meaning and incudes a variety of acts which may
endanger the security of the state. In Madhu Limaye v Sub Divisional Magistrate
Monghyr75 the Supreme Court held that public order means absence of insurrection or
riot or disturbance to public peace.
In Ramji Lal Modi v State of UP76 The validity of the section 295A of the Indian
Penal Code was challenged. It was contended that this section violates the right to
freedom of speech and expression guaranteed under Article 19(1)(a) under the Indian
Constitution. The petitioner who was the printer, publisher and the editor was
convicted under section 295A of the Indian Penal Code. He further contended that
section 295A of the Indian Penal Code was not covered by the reasonable restrictions
of the Constitution. The court rejected this argument and stated that if a person by
exercising his right of the freedom of speech and expression caused public disorder
could be penalized under the said section which fell within the ambit of reasonable
restrictions.
(iv) Decency or morality:
Decency or morality is a ground for the state to limit the right of freedom of speech
and expression. The elaboration of this ground is reflected in Sections 292 to 294 of
the Indian Penal Code. These sections enlists some acts as offences such as selling
obscene books or things to young persons, making indecent gestures in Public places
74 Supra; p. 45 75 AIR 1971 SC 2486 76 AIR 1957 SC 620
57
etc. In Ranjit Udeshi v State of Maharashtra77 the Supreme Court stated that the
section 292 of Indian Penal Code is Constitutionally valid as it prohibits obscenity
and promotes public decency and morality. Further in Chandrakant Kalyandas
Kakodkar v state of Maharashtra78 the court held that while dealing with the question
of decency and morality, the court has to give emphasis as to whether the indecent or
immoral action was capable to corrupt the mind of the young people or there is a
possibility that they would become depraved or their minds would become impure.
(v) Contempt of Court:
There is no denying the fact that freedom of speech and expression is very vital for
the society, but at the same time securing and preserving justice is equally important.
So the freedom of speech and expression prevails but it cannot be exercised to undo
an action of the court of justice.
The Supreme Court under Article 129 and the High Court under Article 215 of the
Indian Constitution are empowered to punish for contempt of court. So also in C.K.
Daphtary v O.P. Gupta79 it was held that the section 228 of the Indian Penal Code and
Article 129 of the constitution are valid and fall under the ambit of reasonable
restrictions mentioned in Article 19(2) of the Constitution. So the freedom of speech
and expression are subject to Articles 19(2), 129, and 215 of the Indian Constitution.
(vi) Defamation:
The right to freedom of speech and expression does not include in any way to cause
harm to the reputation to a person. Causing harm to a person’s reputation is called as
defamation and is a severe limitation on the right of freedom of speech and
expression.
No person can by expression signs or gestures can expose a man to hatred, ridicule or
contempt. Defamation is considered to be a very serious act and hence is prohibited
by the civil law of torts, it is also a criminal offence under section 499 of the Indian
Penal Code and defamation is also covered within the reasonable restrictions of
Article 19(2) of the Constitution.
77 AIR 1965 SC881 78 AIR 1970 SC 1390 79 AIR 1971 SC 1132
58
Friendly relations with Foreign states.
This ground was inserted in the Article 19(2) of the Constitution by way of 1st
Amendment in 1951. This ground of restriction was inserted to prevent the hostile and
malicious propaganda against any foreign state which has friendly relations with the
state of India. Such an activity may tend to jeopardize the efforts of the government of
India to promote and maintain friendly relations other nations. In Jagan Nath v Union
of India80 the Supreme Court held that any Common Wealth country is a foreign
country for the purpose of Article 19 (2) of the Constitution
However it shall be noted that members of common wealth including Pakistan is not a
member of foreign state for purpose of this constitution.
(vii) Incitement to an offence:
According to the criminal jurisprudence incitement and abetment to an offence is an
independent offence itself. Freedom of speech and expression by way of incitement to
any offence would endanger the public order. This ground of reasonable restriction
was inserted in the constitution by way of 1st Amendment in 1951. In State of Bihar v
Shailabala Devi81 it was decided that any speech which amounts to incitement of any
offence could be banned and the order of ban would fall within the reasonable
restrictions mentioned in Article 19(2) of Indian Constitution.
These seven grounds of reasonable restrictions act as line of demarcation of the right
to freedom of speech and expression inclusive of right to free press. So one can say
that, the right to free press prevails within the four corners of reasonable restrictions
mentioned in Article 19(2) of the Indian Constitution.
(g) Press Commissions
The law relating to the press is a very ancient law and a need was felt to update these
laws with the help of independent body. After 1947 the need was felt that the state of
the press should be examined by an authority. With this object the Press Commission
was appointed in India. This Press commission had to scrutinize the structure, the 80 AIR 1960 SC 675 81 Supra; p. 55
59
organs, powers and functions of the press and had to submit the report to the
parliament.
The First Press Commission Report, 1954:
The first Press Commission was established in the year 1952. The Secretary of the
first Press Commission was Mr. S. Gopalan who was an eminent scholar. Along with
Mr. S. Gopalan ten other members were also appointed in the Commission. This first
Press Commission took two years to table its report before the Parliament, and the
report was submitted on July, 17, 1954.
The objects of the first Press Commission were the following;
(i) Enquire into the status of the press in India
(ii) Suggest measures for the future development of the press.
(iii) To scrutinize the ownership and financial structure of the press.
(iv) To assess the control and management of press, periodical press, news
agencies and press syndicates.
(v) This Commission had to analyse the functioning of the monopolies; and
also assess their impact on the accuracy and fairness of the news.
(vi) The impact of holding companies on fair news.
(vii) Assess the distribution of advertisements
(viii) Suggest methods to control the external influence on the development of
healthy journalism.
The highlights of the first Press Commission are as follows
(i) It was suggested that the press council shall be established so that it could
look into the problems and the other related aspects
(ii) The Commission had observed that there was a decline in the status of the
editors of the daily newspapers. It had suggested steps to improve the
status of the editors.
(iii) It recommended the appointment of the Wage Board for fixing the wages
of the journalists.
(iv) It also recommended the registrar of news papers.
(v) It also suggested some steps to encourage the growth of the sense of
responsibility among the journalists.
60
Many of the suggestions made by the first Press Commission were accepted and
incorporated by the parliament of India.
Second Press Commission
The Second Press Commission was appointed in 1977. The esteemed and renowned
Justice P.K. Goswamy was appointed as the Secretary of the Second Press
Commission. During this time there were many disturbances in India as there was a
change in the government. Due to some internal differences he resigned. The
Commission was reconstituted in 1980 with Justice Mathew as Chairman. The report
was published in 1982 with the following suggestions.
(i) It suggested the codification of parliamentary privileges. It was of the view
that the parliamentary privileges were a threat to the free functioning of the
press and was of the opinion to curtail some of these parliamentary
privileges.
(ii) It was of the view that the publication of corrupt or improper judicial
conduct should be non punishable. If this corrupt or improper judicial
conduct was the true fact then truth should be a valid defence available to
the press.
(iii) The present law of defamation should be amended and should be parallel
to the British Defamation Act 1952. It also suggested that unintentional
defamation should not be made punishable.
(iv) It also recommended the establishment of Newspaper Development
Commission. This Commission should aid and assists the small newspaper
agencies. It should also distribute fairly and equitably the government
advertisements as well as the private advertisements.
The recommendations made by the Second Press Commission were only partially
accepted by the parliament of India. One can say that the appointment of the
commissions is definitely one step ahead in the direction of development of the press.
The press commission at least ensures an objective parameter to assess the pros and
cons of the press. The present researcher humbly puts forwards following suggestions
regarding the press commission.
61
(1) The appointments of press commissions should be free from the political
influences. The press commission should have an independent status; so that
the press commission can function impartially and fearlessly.
(2) The reports submitted by the press commission should be implemented by the
government to the maximum extent. The submission of the report of the press
commission should not be regarded merely fulfillment of a technical
formality.
4. Judicial activism and the press.
The freedom of speech and expression is no doubt a fundamental right incorporated in
Article 19(1)(a) of the Indian Constitution; but it has been developed and tailored by
the judiciary. The free press many a times is considered to be a thorn in the throat of
the government. Hence the government is constantly scheming to clip the wings of the
press by various orders and statutes. It is this judiciary which has to act as the
guardian of the free press and protect it against the arbitrary action of the government.
But sometimes it also happens that the press in its zeal and enthusiasm crosses its
limits of freedom; then also the judiciary has to keep the press within its prescribed
ambit of freedom. The judiciary thus plays a pivotal role in protecting and limiting the
right of free press. This aspect has been elaborated with the help of some of the
landmark judicial precedents.
In Naresh Mirajkar v State of Maharashtra82 the Supreme Court held that, an order of
the court prohibiting the publishing of the evidence in the newspapers is not an
infringement on the fundamental right of freedom of press.
In the famous case of the Sakal papers v Union of India,83 the legislature had enacted
the Newspaper (Price and Pages) Act 1956, under which the government enacted the
Newspaper (Price and Pages) Order 1960. By this order the government regulated the
price and printing of the newspaper,
(i) By fixing the maximum number of pages that might be published by a
newspaper.
82 Supra., p. 48 83 Supra., p .46
62
(ii) Fixed the price according to the number of supplements and number of pages
of the newspapers.
By this order the circulation of the paper was hampered, as a result of
enhanced price in relation to the number of pages of the newspaper.
This order of the central government was challenged on the ground that, it
violated the fundamental right of speech and expression as the speech and
expression incorporated in the newspaper whose circulation was curtailed due
to the price fixation by the said order. The government’s defence was that the
said order was covered under Article 19(2) of the Indian Constitution which
empowered it to place a restriction on right of freedom of speech and
expression. Further it stated this order was in pursuance to protect the general
interest of the public.
The Supreme Court in its judgment stated the following aspects
(i) The right of free press is an implied right in Article 19(1)(a) of the Indian
Constitution. Freedom of speech and expression is a genus and the freedom of
press which flows from it is the species of it. As the freedom of press flows
from the freedom of speech and expression, enjoyed by any citizen, the
freedom of press is on the same footing of the freedom of speech and
expression. Thus the press is not placed on either a higher pedestal, or on a
lower pedestal as compared to any citizen enjoying his freedom of speech and
expression.
(ii) The Supreme Court stated that the regulation of the price which curtailed the
pages of the Sakal newspapers was definitely an infringement on the right to
freedom of speech and expression. The defence of the government of the
regulation being based on the public interest was not accepted by the court.
Hence the said order was not within the purview of the restriction of Article
19(2) of the Indian Constitution. The court therefore struck down the order.
63
In K.A Abbas v Union of India84 the constitutional validity of the censorship of
the films was challenged. It was contended that the film was a medium of
speech and expression. No other medium of speech and expression had a prior
restraint. Only the movies or the films had a prior restraint in the form of pre
censorship. The court rejected the petitioner’s contention and stated that the
pre censorship was very much necessary because the movies have a very deep
and lasting influence on the young mind as compared to any other mode of
speech and expression. The characters in the movie are very glamorous and
are very potent source of imitation. Hence the need of pre censorship to access
and evaluate and categorize the film is necessary. Hence it was decided that
pre censorship was constitutional, and so did not infringe the fundamental
right of freedom of speech and expression incorporated in Article 19 (1) (a) of
the Indian Constitution.
Further in Bennett Coleman and Co. v Union of India 85 In order to meet the
requirement of the shortage of news print, the government enacted a policy to regulate
the pages of the newspapers in accordance with its circulation. Thus the big
newspapers could not increase their page area or periodicity in order to meet with the
quota of the newsprint. This policy was challenged in the Supreme Court. The
majority bench of the Supreme Court has laid down the following principles related to
the right of freedom of speech and expression.
The Supreme Court stated that the policy of allotting the newsprint was certainly
violating the right of freedom of press, as it was clearly out of the scope of the
restrictions mentioned in Article 19(2) of the Indian Constitution. Further the court
stated that this policy was actually a garb or coverage to curtail the circulation of the
newspapers. The government evolving a policy of allotting the news print should be
fair, reasonable and equitable. The said policy of limiting all the newspapers without
any consideration of their size was held to be discriminatory and also this restriction
had hit the root of the freedom of speech and expression. Freedom of speech and
84 Supra., p. 52 85 AIR 1973 SC 106
64
expression involves the aspects, circulation and content. So only it is said that the
freedom of press is both qualitative as well as quantitative.
A very important aspect in the light of preservation of Human Rights was laid down
by the Supreme Court in Smt. Prabha Dutt v Union of India86. It has been held that
the journalists can interview a prisoner who has been sentenced to death punishment,
if he has given his consent to be interviewed. If the conducting of the interview is
prohibited by the prison authorities, then, the prison authorities have to record the
reasons in writing, and it for the court to justify those reasons.
In another very significant case, Indian Express Newspapers (Bombay) Pvt. Ltd. V.
Union of India87 The central government issued a notification of March 1st 1981, by
which it imposed auxiliary duty on the news print which was imported by the various
categories of the newspaper. This was an additional levy of duty which was to be paid
by the press. The Indian Express along with several other newspapers challenged the
validity of the notification in the Supreme Court.
The Supreme Court has made certain observations regarding the right of freedom of
press. It has stated in crystal clear words, that the press constitutes the Fourth Estate
of the Country and hence the government cannot curtail the right to freedom of press
by any unreasonable and arbitrary action. Levying a duty or imposing a tax on the
newsprint amounts to imposing tax on the knowledge and information which would
be a burden on an individual for being literate. The Supreme Court has highlighted the
importance of the press in a socially developed democratic state. Further the court has
stated that ‘in fact’ the freedom of press is the heart of social and political
intercourse. 88 However the court did not squash the impingent notification, but
directed the government to consider the question of levying the auxiliary duty within
the period of six months.
86 AIR 1982 SC 6. 87 AIR 1986 SC 515 88 Ibid;527.
65
Here the Supreme Court has followed Roscoe Pound’s theory of balancing the
conflicting interests. The Supreme Court has protected the right of freedom of press
by saving the press from not paying the duty; and simultaneously, by not governments
notification, has protected the government’s interest also. By this way, the Supreme
Court has beautifully balanced the two conflicting interests.
In R Rajagopal v State of Tamil Nadu89, a very unique aspect was settled by the
Supreme Court. The court has broadened the horizons of the freedom of press and by
allowing the press to criticize and comment on the acts of the public officials. It has
stated that the freedom of the press extends to engaging in an objective and candid
debate of public issues and events of public figures. However an important caution
has been stated by the Supreme Court that in this intricate matter one has to maintain
a proper balance of freedom of press and the right to privacy of the public figures.
The verdict of the Supreme Court in Hindustan Times v State of UP90 The court has
stated that the executive action of deduction of 5% of the bills payable to newspapers
was hit by Article 14 of the Constitution, and hence such an order was void.
As far as the protection of advertisements in a newspapers under Article 19(1)(a) of
the Constitution, has changed its traditional view. In the Hamdard Dawakhana v
Union of India91 the court had emphatically stated that a commercial advertisement
has an intention of promoting trade and commerce and hence does not falls strictly
within the ambit of freedom of speech and expression. A commercial advertisement
does not in any way circulate, any social, economical or political ideas or views, and
neither does it offer any nourishment to the literate minds of the humans. Later on in
the Indian Express Newspapers case, the Supreme Court has diluted the ruling of
Hamdard Dawakhana. The court has stated that commercial advertisement is a part of
freedom of speech and expression because of the fact that the advertisements fetch
subsidies and in the absence of such commercial advertisements the price of the
newspapers will rise, and hence the circulation will be affected.
89 AIR 1995 SC 264 90 AIR 2003 SC 250 91 Supra., p49
66
Still further the Supreme Court has developed the same line of thought in Tata Press
v Mahanagar Telephone Nigam Ltd92. It was held here that the commercial speech is
also a part of freedom of speech and expression.
From the above cases it is evidently clear that the government in some way or the
other is constantly in an attempt to curb the right of the press, and hence the constant
intervention of the judiciary becomes mandatory. The right to free press is the
founding stone of the democracy and the judiciary has to preserve, protect and
promote it.
3. Concluding remarks
The researcher has made an humble attempt in the preceding pages to give a bird’s
view regarding the meaning of freedom of press, the historical aspect of press, (pre
British era, and the British era.), the constitutional status of freedom of press, the
rights and the scope of powers of the press, the restrictions on the scope of freedom of
press, the recommendations of the press commissions and the role of the judiciary in
protecting and circumscribing the scope of freedom of press. The freedom of speech
and expression inclusive of freedom of press has secured a coveted place in the
chapter of fundamental rights in the Indian Constitution. The importance and
significance of the press is profound. The press is considered as the fourth estate of
the democracy. In fact the freedom of press reflects the credentials of democracy.
The press performs a twofold duty because on one hand it communicates to the
government the mood, aspirations, thoughts, and needs of the people; and on the other
hand it communicates to the society the intentions, actions, and measures of the
governments to the people. The press is considered to be the most effective medium,
to feel the pulse of the society and communicate it to the government. The press is
considered to be a link between the different regions of the entire nation as the
freedom of speech and expression knows no geographical boundaries. The freedom of
speech is the core and freedom of expression is the fringe; and freedom of press
includes both these aspects.
92 AIR 1995 SC 2438
67
It is the cardinal principle of jurisprudence that no right can prevail in absolute terms;
and the freedom of press is no exception. Some restrictions are placed on this right as
well. The right to speech and expression prevails within the demarcation of
restrictions placed under Article 19(2) of the Indian Constitution. The government by
various statutes, orders, regulation has tried to clip the wings of the press. In fact the
battle between the free press and its suppression by the executive authority has
become the bone of contention. The judiciary being the guardian of the fundamental
right of the citizens has tried to protect them zealously. Sometimes it also happens
that in its over enthusiasm, the press goes beyond its prescribed arena and then the
judiciary has to reprimand it, not to overstep its limitations. A humble attempt has
been made to give a brief account of the judicial activism related to the freedom of
speech and expression inclusive of freedom of press.
After the perusal of the Constitutional provisions and the restrictions placed upon
them as far as the freedom of speech and expression is concerned the researcher has
tried to assess and evaluated the role of media in the forth coming chapter.
68
CHAPTER III
IMPORTANT LEGISLATIONS RELATING TO MEDIA IN INDIA
Synopsis
1. Introduction
2. Types of legislations
(a) General legislations
(b) Specific Legislations
3. General legislations
(a) The Indian Penal Code 1860
(b) The Indian Telegraph Act 1885
(c) The Unlawful Activities (Prevention) Act 1967
(d) Monopolies and Restrictive Trade Practices Act 1969
(e) Information Technology Act 2000.
4. Specific Legislations
(a) The Press and Registration of Books Act 1867
(b) The Official Secrets Act 1923
(c) The Cinematograph Act 1952.
(d) Drug and Magic Remedies (Objectionable Advertisement) Act 1954.
(e) The Newspaper (Prices and Pages) Act 1956
(f) The Copyright Act 1957.
(g) Prevention of Publication of Objectionable Matter Act, 1976 (repealed in
1977)
(h) Press Council Act 1978
(i) Prasar Bharati Corporation Act 1990.
(j) Cable Television Networks Act 1995.
(k) Right to Information Act 2005
69
5. Statutory bodies
(a) Ministry of Information and Broadcasting
(b) Press Council Board
(c) Press Information Bureau
(d) Registrar of Newspaper for India
(e) Telecom Regulatory Authority of India
(f) The Advertising Standard Council of India
(g) Directorate field publicity
(h) Central Board of Film Censors
6. Concluding remarks
70
1. Introduction
In the preceding pages a brief account of the legislations pertaining to the freedom of
press are dealt with. The noteworthy fact is that no legislation specifically granted the
right to press; as those legislations merely curtailed the freedom of press. A landmark
in the history of press, was when for first time ever, the right to press was recognized
and secured by the Indian Constitution. The freedom of press does not enjoy an
independent status as it is incorporated in the freedom of speech and expression but
one should not be misled by this fact, that freedom of press does not enjoy the same
status as that of any other fundamental right93. Freedom of press is one of the most
coveted right in the entire chapter of Fundamental Rights of the Indian Constitution.
This is so because the freedom of press is the backbone of the democracy.
Actually the term “freedom” means no restraint. This means that when we speak
about freedom of press there are no restraints on the press. However this is not the
meaning of freedom, here the meaning of freedom of press has to be taken in the
sense of right to press with reasonable restrictions. Freedom of speech and
expression like any other right is circumscribed by restrictions placed under Article
19(2) of the Indian Constitution 94 . History has shown that the government is
sometimes very apprehensive of the press and hence tries to curtail the freedom of
press. With this object the government has passed a string of legislations which have
to fulfill the requirements of Article 19(2). So eventually there are two categories of
restrictions placed upon the freedom of speech and expression inclusive of freedom of
press, (i) Constitutional restrictions under Article 19(2) (ii) Acts passed by the
legislators.
The preceding chapter deals with the Constitutional restrictions under Article 19(2)
and the present chapter deals with the legislations which are related to the freedom of
press. Some legislations act as limitations on the freedom of press, whereas some
legislations protect and promote the press. A few legislations have been analysed in
forthcoming pages.
93 Supra. ,p. 37 94 Supra. ,p 53.
71
2. Types of legislations
To demarcate the exact nature, scope or the extent of the freedom of press one has to
know the limitations or the restrictions which are imposed upon that freedom. Hence
the limitations on the freedom of the press are very crucial for culling out the scope of
the freedom of press. Apart from the restrictions mentioned in the Constitution, the
freedom of press is subjected to restrains by various legislations.
A scrutiny of various legislations points out to the fact that the legislations can be
classified into two categories. The criteria used for the classification is the content of
the legislation. Based upon this content the legislations are classified into (a) general
legislations and (b) specific legislations.
(a) General legislations
When a particular legislation deals with the aspect of freedom of press in totality or
generally it can be classified as a general legislation. It means this type of legislation
deals with the freedom of press in a general manner imposing general restrictions. To
put it in other words, this type of legislation does not deal with any particular or
specific aspect related to the press. For example the Indian Penal Code imposes a
general limitation of defamation on the freedom of speech and expression inclusive of
freedom of press.
(b) Specific legislations
When legislation deals with a specific aspect of the freedom of press, it can be
classified as a specific legislation. In this type of legislation the legislature’s intent is
to deal with a particular or a specific object related to the freedom of press. It means
that such a specific legislation deals with explicit elements in the form of restrictions
imposed upon the freedom of speech and expression inclusive of freedom of press.
For example, the Cinematograph Act 1952 deals with the restrictions imposed upon
the cinema that is it deals with a specific aspect of freedom of speech and expression
that is cinema.
A few legislations have been analysed according to these criteria.
72
(3) General legislations
(a) The Indian Penal Code 1860.
The Indian Penal Code is regarded as the substantive criminal law of the land. The
object of this code is to identify the offences which are prohibited and prescribe
penalties for them. Some of the offences prohibited by this code amounting to misuse
of the freedom of speech and expression are sedition and defamation. Section 124 A
of the Indian Penal Code states if any person by any words written or spoken or by
making any visible signs attempts to bring the feeling of hatred or contempt against
the government shall amount to sedition and will be punishable with imprisonment
fine or both. This section places a general restraint on the freedom of the speech and
expression inclusive of freedom of press. Freedom of press does not include the
freedom of projection the feeling of hatred or contempt towards the government. The
right to reasonable criticism prevails which does not amount to sedition. The second
general restriction imposed by the Indian Penal Code is in the form of defamation.
The common misuse of the freedom of the speech and expression which prevails is
the offence of defamation. Right of freedom of speech and expression through press
does not include the right to injure a person’s reputation by making false statements or
by visible representations or gestures. Right to freedom of the speech and expression
through press does not include the right to defame even a deceased person or
company or an association or likewise. Though it seems a general restriction, it is a
very vital restriction imposed on the freedom of speech and expression of the press.
Further the Indian Penal Code under section 501 prohibits the printing or engraving of
defamatory matter. So also selling of such a printed or engraved defamatory substance
is an offence under section 502 of the Indian Penal Code.
So it can be stated that the Indian Penal Code imposes two restrictions in the general
form on the freedom of speech and expression through press.
(b) The Indian Telegraph Act 1885
The Indian Telegraph Act 1885 is a statute whose main object is to deal with all
aspects of telegraph and also to empower the government or any licensed company or
person to adopt such measures which are necessary to expedite the telegraph
73
communication. According to the object and statement of reasons of this statute, it
may not have any bearing upon media. To put it in other words, this statute does not
have any link with the different aspects of media. However, in the year 2003 the
Parliament made an amendment to The Indian Telegraph Act. The amendment of this
Act was made to define the term telegram. The said amendment inserted clause 1(AA)
in section 3 of the statute. This amendment was considered to be very important and
hence it had retrospective application. According to this amendment, clause 1(AA)
which was inserted in clause 1of section 3, deals with the definition of the term
telegraph. The telegraph includes any piece of equipment, appliance or apparatus used
to transmit or receive any signals or writing material or images or pictures or any
other electromagnet emissions or radio waves or hertzian waves or any electric or
magnetic waves. This clause has broadened the meaning of telegraph so as to include
radio within its ambit. The radio is considered to be the most popular agency of
media. Hence The Indian Telegraph Act 1885 becomes applicable to freedom of press
as far as radio is concerned. The application of this Act to media and press is limited
as only the radio is covered under this statute.
(c) The Unlawful Activities (Prevention) Act 1967
The objective of this Act is to secure and promote solidarity, integrity and stability of
India. The National Integration Council appointed the Committee on National
Integration and National Regionalism, to deal with the national integrity of the state.
The Constitutional Sixteenth Amendment Act 1963 empowered the parliament to
enact a statute which would contain reasonable restrictions on the fundamental rights,
incorporated in Article 19(1) of the Indian Constitution. The reasonable restrictions
were to be imposed mainly on the freedom of speech and expression and freedom to
assemble peacefully, and form associations and unions. This amendment sought to
achieve the object of protecting the sovereignty and integrity of India. In pursuance to
the Constitutional Sixteenth Amendment 1963, The Unlawful Activities (Prevention)
Act 1967 was enacted.
The object of this statute is to declare any activity in grab of freedom of speech or
freedom of association unlawful if it endangers the integrity, or the solidarity or the
stability of the state. As this statute prohibits freedom of speech and expression which
74
hampers the integrity of the state; it acts as a reasonable restriction on the freedom of
speech and expression.
The Section 2(f) of the Unlawful Activities (Prevention) Act 1967 deals with the
meaning of the term ‘unlawful activity’. It states that any individual or association by
any act or by words spoken or written, or by any visible representation, endanger the
security or the integrity of the state would constitute unlawful activity. The Act
further prescribes punishments in the form of imprisonment with or without fine for
such unlawful activities.
This piece of criminal legislation is very stringent as it bars the jurisdiction of courts
and imposes heavy penalties; but constitutes as reasonable restrictions under 19(2) of
the Indian Constitution. According to this statute, freedom of speech and expression
does not include the freedom to endanger the security, solidarity, stability and the
integrity of India.
This statute has become very important because of the rising terrorist activities. In
order to deal with the more severe situation of terrorism the parliament has enacted
Unlawful Activities (Prevention) Amendment Act 2008. Unlawful Activities
(Prevention) Amendment Act 2008 deals with more serious activities of terrorism and
prescribes penalties for them. This statute does not bear a direct relationship with
freedom of speech and expression, but deals with unlawful activities; and the term
unlawful activities is dealt in Unlawful Activities (Prevention) Act 1967. Both these
statutes affect the freedom of speech and expression inclusive of freedom of press and
media as they impose restriction on the arena of the said freedoms.
(d) Monopolies and Restrictive Trade Practices Act 1969
India is a welfare state and hence the government has to undertake multifarious
activities to promote the welfare of the people. The Indian legal system believes and
incorporates equality, the second principle of rule of law as propounded by A.V
75
Dicey95. The essence of equality demands that there should be absence of capitalism.
To prevent capitalism monopoly should be prohibited and a market of free
competition should prevail. To fulfil this objective the Monopolies and Restrictive
Trade Practices Act 1969 was enacted. This statute imposes a reasonable restriction
on the freedom of speech and expression. Section 36A of the Monopolies and
Restrictive Trade Practices Act 1969 defines unfair trade practice. Among other
things unfair trade practice includes any false or misleading representation either
orally or in writing or by visible representation. This statute restricts the freedom of
speech and expression which misleads a fact by way of false advertisement. The false
advertisement is regarded as an unfair trade practice; hence this statute restricts the
freedom of speech and expression through advertisement in a general manner.
(e) Information Technology Act 2000.
Today there is a dire need to protect the environment. The press requires a lot of
printing and publishing which means a lot of paper is required to carry on the
activities of the press. Paper comes from the bark of the trees and many trees have to
be cut down in order to procure the required quantity of the paper. If many trees are
continuously cut, then definitely the balance of the environment will be tilted. Hence
a need was felt to invent alternative approaches to the paper based methods of
communication. With the main objective to recognize the alternative approaches to
the paper based communications and to legalize the electronic transactions, The
Information Technology Act 2000 was enacted. The following are the objects of the
Act
(i) To introduce alternative approaches to the paper based methods of
communications.
(ii) To provide legal protection to electronic commerce.
(iii) To authenticate the method of electronic records.
(iv) To legalize electronic governance.
(v) To provide a legal recognition to digital signatures
(vi) To attribute and acknowledge the electronic records.
95 Dicey A.V; The law of the Constitution;198 (8th edition)
76
(vii) To provide the method and procedure for the dispatching of such
electronic records.
The Information Technology Act 2000 can be considered as a revolutionary
legislation in the history of methods of communication and storage of information.
The statute has recognized the technologies to gather and store information. A lot of
paper work has been reduced by the introduction of this electronic medium of
communication. The said statute has changed the mode of speech and expression and
hence it circumscribes the freedom of speech and expression inclusive of press and
media.
The Information Technology Act 2000 provides penalties regarding the misuse of
any mode of modern technology in the following manner;
(i) Imprisonment with or without fine for the act of tampering with the computer
source document, according to section 65 of the said statute.
(ii) It imposes heavy fines and imprisonment for the hacking of computer system.
(iii)Publishing obscene information in the electronic form is also an offence
punishable with imprisonment with or without fine.
(iv) Breach of confidentiality and privacy is also punishable under this statute.
(v) A person may be punished with or without fine for making misrepresentations
or for suppressing any material fact intentionally.
The statute further empowers the controller to issue directions to a subscriber to
extend facilities to decrypt information.
The Information Technology (Amendment) Act, 2008, inserts section 69A and 69B
in the Information Technology Act. According to section 69 A the government can
block the public access of any information through the computer resource if it is
against the interest of sovereignty, solidarity and integrity of India.
Section 69B authorizes the government to monitor and collect the traffic data through
any computer resource.
77
To incorporate the provisions of The Information Technology Act, four statutes had
to be amended
(i) By the amendment to the Indian Penal Code 1860. Sections 29, 172, 173,
175,192,204,464, 466, 468, 469, 470,471,474, 476 477A were amended.
(ii) By the amendment to the Indian Evidence Act 1872 sections 3, 17, 22,
22A, 34, 35 ,39, 47, 65A, 65B, 67A, 73, 73A, 81A, 85A, 85B, 85C, 88A
90A and 131 were amended.
(iii) By the amendment to the Bankers Book Evidence Act 1891, sections 2,
2A, were amended.
(iv) By the amendment to the Reserve Bank of India Act 1934 section 58 was
amended.
The point to be made here is that, the amendment of four statutes show the range of
wide applicability of The Information Technology Act.
The Information Technology Act 2000 does not deal with the nature and scope or the
restrictions on the freedom of speech and expression, inclusive of press and media.
But the said statute has changed the mode of speech and expression, inclusive of press
and media; and hence the prescribed permissions and limitations placed on this mode
are applicable to the freedom of speech and expression. Hence it is stated that the
Information Technology Act has brought a revolutionary change in the freedom of
press and the media.
All the statutes discussed above do not deal with any particular or specific aspect of
freedom of press and hence they are classified as general statutes. These statutes have
influenced the freedom of press in an indirect or general manner. The said statutes
have either dealt with the nature and scope of the press, or have created a right, or
have given a different dimension to the freedom of press, or have changed the mode
of expression or have placed a restriction or limitation on the freedom of speech and
expression inclusive of freedom of press and media.
So one can safely say that freedom of speech and expressions prevail, only subject to
the constitutional restrictions as well as the general statutory restrictions. But these
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are not the only restrictions and more restrictions placed by specific statutes are yet to
be analysed.
4. Specific Legislations.
Some statues deal with a particular aspect of the freedom of speech and expression
and freedom of press that is such a statute deals with only one dimension or facet of
the freedom of press. To put it in other words, it does not deal in totality or with
general aspects of the freedom of press. For example The Press and Registration of
Books Act 1867 deals only with the regulations related to the printing and publication
of the books. It does not deal with any general conditions or aspects of the freedom of
press, but deals with a specific aspect of printing and publication of the press. Hence
such legislations which deals with a particular condition or aspect related to the
freedom of speech and expression inclusive of freedom of press and media are
categorized as specific legislations.
(a) The Press and Registration of Books Act 1867
This statute was enacted to regulate the press and newspaper’s printing activities.
Another important object of the statute was to compel registration of books and
printed material in order to make a compilation of the collections of the books. The
statute makes the following provisions regarding printing and publishing books and
newspapers.
(i) According to section 3, any printed material including book, or a paper
shall contain the name and the place of the printer and the publisher. In re:
G Alavander96, it was stated that the identification clause incorporated in
section 3 was not violative of Article 19(1)(a) of the Indian Constitution. If
a person violates section 3, he is subjected to punishment under section 12
of the Act with simple imprisonment or fine.
(ii) Any person who has in his possession the printing press has to make a
declaration to the magistrate of the fact of possessing a printing press. If
he fails to do so such a person may be subjected to penalty under section
96 AIR 1957 Mad 427
79
13 of the said Act. The punishment is in the form of imprisonment or fine
or both.
(iii) If a person ceased to be a printer or a publisher then he has to make a new
declaration that he is not a printer or a publisher any more under section 8
of the Act. If he fails to make a new declaration, he shall be penalized
under section 15A of the Act.
(iv) Section 14 of The Press and Registration of Books Act 1867, a person is
penalized for making false or untrue statements regarding the declarations
to be made under section 4 and section 8 of the Act.
(v) Section 11A of the statute demands that the copies of the printer should be
delivered to the government as soon as they are published. Section 11B
states that the copies of the newspapers should be delivered to press
registrar.
(vi) The press registrar should be appointed under section 19(A) of the Act.
The function of the press registrar was to observe a general
superintendence and control over the press. Under section 19(B) the
registrar is empowered to maintain a register of newspapers.
(vii) Every publisher of a newspaper had to furnish returns and reports to the
registrar under section 19 E of the Act. Omitting to do the person could be
punished under section 19 K of the Act.
(viii) Section 19L imposes penalty for disclosing improper information to the
registrar.
(ix) This Act incorporates the provision for delegated legislation to be made by
the state government under section 20. The state government to make
necessary rules to bring into effect the objects of The Press and
Registration of Books Act 1867.
(x) Section 20 A of the Act empowers the central government to make the
rules for regulating the activities of printing or publishing of newspapers
and books. When the rules were made they are to be laid before the
parliament for affirmation.
As seen from the above discussion this statute deals in detail with the
procedure of printing and publication of newspapers and books. The
salient features of The Press and Registration of Books Act 1867 is the
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theme of identification of printers and the publishers of the newspapers
and books.
It is to be remembered that this statute was enacted by the Britishers, in the
pre independence era. The object of the then British Government was to
curb and suppress the activities of the press. It was necessary for them to
do so because of the rising revolts and tremendous incitement and
instigation for the movement of freedom. By this statute the British
Government wanted to put check through identification clause on the
press. As it would be easier to take action when the names of the printers
and publishers known.
The critics of this statute opine that this statute is outdated and the object
of this Act to suppress the freedom movement in the pre independence era
is not applicable in the post independence era, where India is sovereign
democratic state. As the object of the statute is no longer applicable, thus
the statute should cease to exist.
The arguments in favour of retaining the statute are as follows,
(i) The statute does not restrict the freedom of press.
(ii) The identification clauses incorporated in the statute only protects
the interest of publishers and printers. So also the identification of
the printers and publishers acts as a check on printing any
defamatory, false, seditious or obscene matters.
(iii) The other procedures related to printing and publishing of the
books is merely regulatory and does not in any way curb the ambit
of freedom of press.
In the humble opinion of the researcher the object of the statute has no doubt
changed, nevertheless the statute is relevant and applicable even in today’s times.
Another important aspect is this that the statute is not imposing any pre censorship
on the press which is a very important aspect in today’s times. Apart from putting a
few regulatory restraints the statute does not amount to the curtailment of the
freedom of press.
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(b) The Official Secrets Act 1923
The Official Secrets Act 1923 was enacted in the British era by the British
Parliament. Prior to this Act various statutes relating to official secrets prevailed in
British India. The first statute enacted was the Indian Official Secrets Act 1889. Its
amended version prevailed in the Indian Official Secrets (Amendment) Act 1904.
Later the Official Secrets Act 1911 prevailed. Lastly the Official Secrets Act 1923
was enacted which was the cumulative effects of all the above statutes. It seems that
the British rulers were very apprehensive regarding the protection of their official
secrets. Every now and then, because of the freedom movements and revolts,
regarding independence strengthened their fears of their official secrets being leaked;
so a series of statutes regarding official secrets were introduced. It appears that the
British rulers have given more time and weight age to the protection of secrets rather
than to any other issues. This shows that they knew their rule in India was unstable
and constantly becoming weak.
The Official Secrets Act 1923 imposes restrictions upon the freedom of speech and
expression inclusive of press to a certain extent. The statute states that the following
activities will not fall within the scope of the freedom of speech and expression.
(i) Any act which is prejudicial to the safety and interest of the state which
amounts to spying is prohibited under section 3 of the Act. Section 10 of the
statute imposes penalties for even harbouring of spies.
(ii) Any communication with any foreign agents for the commission of certain
offences is prohibited and punishable under section 4 of the statute.
(iii) Any wrongful communication or information amounting to official secret to
any person with the view of endangering the sovereignty and integrity of
India is Punishable under section 5 of this statute.
(iv) Any interference or obstruction with the view to mislead the members of
police or the armed forces is prohibited and punished under section 7 of the
statute.
(v) Section 8 of the Official Secrets Act 1923 restricts the freedom of speech and
expression in a very different manner, that is, it restricts the freedom of
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speech and expression, which is in the form of silence. This section makes it a
legal duty to impart information regarding the commission of any offence
committed by guard, sentry or any patrolling officer. If a person, knowing
such a fact does not give information, he is punishable under section 8 of this
Act.
(vi) Section 9 of this Act prohibits incitement to any offence.
(vii) Another important restriction on the freedom of speech and expression is
placed by section 14 of The Official Secrets Act 1923. It states that the
proceedings of the court are prohibited from being published in public. So
also any publication of any evidence or statements made in the course of the
proceedings cannot be published for the sake of security and the safety of the
state.
The Official Secrets Act 1923, as analysed above demarcates the ambit of freedom of
speech and expression to a considerable extent, for the sake of the protection of
official secrets of the state. This statute suffers from a few loopholes.
(i) The most glaring loophole of the statue is that the word secret is not
defined in the statute. The absence of the meaning of the term ‘secret’
makes it next to impossible to interpret and apply the whole statute.
Many a times very vague or a very broad meaning is attributed to the
term secret, which causes severe difficulties in knowing the exact
scope of freedom of speech and expression in relation of The Official
Secrets Act 1923.
(ii) Another very grave demerit of the statute is that, any information
covered under Official Secrets Act 1923 is exempted from The Right
to Information Act 2005. This complicates the matter because the term
secret is not defined in The Official Secrets Act 1923 and the same
secret information is exempted from The Right to Information Act
2005.
(iii) Lastly it has to be remembered that this statute was passed by the
Britishers, whose utmost endeavour was to protect their official
secrets to stop the growth of mutiny. But today India is a democracy
wherein there is people’s participation in the government, and there is
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no question of mutiny. So also all the secret information regarding
defence forces are protected under the various defence statutes; hence
there is no point in protecting the official secrets under a separate
statute. It is humbly submitted that The Official Secrets Act 1923, is
not applicable in present times, and hence should be repealed.
(c) The Cinematograph Act 1952
Cinemas are considered to be very important means of speech and expression,
because cinemas have profound and retaining impact upon the public. This mode of
speech and expression is subjected to limitations by various statutes. The major
statute which governs the cinemas is The Cinematograph Act 1952. The objects of
this statute are the following;
(i) To certify the movies
(ii) To classify the movies according to its contents into ‘A’ for adults
‘U’ for unrestricted audience, and
‘U/A’ for universal but under the supervision of adults.
(iii) To scrutinize the movies
(iv) To establish a censor board.
(v) To censor any portion or part of the movie that is deemed to be obscene or
immoral, according to the provision of the statute.
(vi) The statue provide for pre censorship of the films.
According to the Act the Central Government may, by notification in the official
Gazette, constitute a Board to be called the Board of Film Certification. This board is
constituted of a Chairman and not less than twelve and not more than twenty five
other members appointed by the Central Government. This board views the film and
certifies the film. The censor board, being a statutory authority has the authority to
authorize the film for public viewing.
The constitutional validity of the Act was challenged in K Abbas v Union of India97,
stating that both press and motion pictures derive the right through Article 19(1)(a) of
the Constitution. There is no pr censorship on press, then how can there be a
97 Supr. , p. 52
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censorship on motion pictures, the court answered that the motion pictures have the
ability to stir the emotions more than the ordinary press, and hence the censor is
needed.
There is also an appellate tribunal to challenge the decision.
However the problem is that the authority of this board is always challenged by the
self declared authoritarians of the society. The films despite being passed through the
scissor of censors and then was certified for public viewing, still it faces ban either by
the state government or due to violent protest made by self declared authoritarians of
the society.
The film Water which was based on the poverty and impoverishment of young
widows of Varanasi, during 1938 was also the prey for such authoritarians. As per the
actual schedule the film was to commence its shooting in 2000. However due to
strong protest and the death threats to the producer Deepa Metha, from Hindu
fundamentalists, the film was shot on secret locations in Sri Lanka. After the
completion of film in 2003, the acquired wide international recognition, but was only
released in India in 2006.
The movie Da Vinci Code, even after getting the nod from the Censor board was
banned by various states as the Christian community protested, stating that their
religious sentiments were hurt. A point here is to be noted that the film did very well
in Western Christian countries.
In Sree Raghavendra Films v Government of Andhra Pradesh and others98 The Telgu
Version of the film Bombay was banned by the state government in spite of getting
the clearance from the censor board. It was later found out that the authorities, who
banned the movie, did not even watch the movie. The court raised the ban on the
movie.
98 1995(2) ALD 8
85
The case of Life Insurance Corporation of India v. Prof. Manubhai D. Shah99 is no
different; here a short film was based on Bhopal gas tragedy. The film was certified
as ‘U’ by the censor board, and had won Golden Lotus award, being the best non-
feature film of 1987. Despite of this the Supreme Court the Doordarshan did not
telecast it. The reason offered by Doordarshan was that various political parties were
raising the objection and claims of the victims were still pending in the court of law.
The Supreme Court held that merely, because it is critical of the State
Government…is no reason to deny selection and publication of the film.
The same was the fate of kamal Hassan’s film, ‘Vishwaroopam’. The film was
released after it was passed by the censor board. The board had suggested few cuts
with which Kamal Hassan had complied. The film was not however released in the
state of Tamil Nadu. A special screening was made before the representatives of the
state government and further cuts were suggested.
An obvious question which arises now is that about the constitutional validity of the
Censor board. The question so posed is because the government and the self declared
authoritarians keep on overruling the Censor board.
It is true that the motion picture are capable of stirring the emotions more than the
press, and a pre censorship regarding the motion pictures is necessary, but this does
not mean that it can be done at whim and wish of the government or the self declared
authoritarians. To censor the films there is a proper statutory authority and if it passes
the film then it should be displayed without any undue delay.
This statute falls within the restrictions of the Article 19(2) of the Indian
Constitution, and hence is regarded as permissible, reasonable restrictions on films.
Apart from the Cinematograph Act 1952, few other statutes also deal with the films
and film industries and it would not be out of place to mention a few of them here.
99AIR 1993 SC 171
86
One of them is the Cine Workers and Cinema Theatre Workers (Regulation of
Employment) Act 1981. This Act deals with the conditions of the service of the
workers of the cine theaters. It imposes certain obligations on the producers and the
owners of the theaters and mandates them to comply with certain conditions for the
betterment of the cine workers.
Some other similar legislations dealing with the Cine workers is Cine Workers
Welfare Cess Act, 1981, and the Cine workers Welfare Fund Act 1981. Both these
statutes were enacted to secure the financial support to the cine workers.
The film industry being very seasonal, unpredictable and unstable many a times
causes hardships to its employees. The cine workers get remuneration only when the
films are made, and in the slack period they are deprived of income. These two
legislations secure financial aid and assistance to these cine workers in the form of
compulsory income and funds available throughout the year.
The Bombay Police Act 1951 empowers the police to regulate and curtail the
exhibition of films under certain circumstances mentioned in the statute.
There are number of legislations which regulate and restrict the production and
publication of films in certain circumstances; and such legislations fall within the
reasonable restrictions under Article 19(2).
(d) Drug and Magic Remedies (Objectionable Advertisement) Act 1954
The object of the Drug and Magic Remedies (Objectionable Advertisement) Act 1954
was to govern and regulate the advertisement to drugs. Medicine is a profession and
cannot be evaluated in the commercial terms and hence a need was felt to regulate the
activity of the advertisement related to drugs. At the outset it is important to note that
this statute was challenged in Hamdard Dawakhana v. Union of India 100 The
Supreme Court had given a narrow interpretation of the term speech and expression in
100 Supra. , p. 49
87
relation with the advertisement; and the commercial advertisements were not included
in the freedom of speech and expression- Article 19(1)(a) of the Indian Constitution.
Later in the Tata Press Ltd. v Mahanagar Telephone Nigam Ltd101, the Supreme
Court held that advertisement was a mode of defusing and broadcasting information
regarding any product, hence advertisement fell within the ambit of Article 19(1)(a)
of the Indian Constitution.
The Drug and Magic Remedies (Objectionable Advertisement) Act 1954 prohibits the
advertisement to drugs in the following manner;
(i) Advertisements related to the curing or treatment of certain deceases,
ailments or disorders are prohibited by section 3 of the said statute.
(ii) Misleading or false or untrue advertisements related to the drugs are
prohibited under section 4 of the Act.
(iii) The advertisement related to any magic remedies pertaining to any
ailment, disease or disorder is prohibited under section 5 of the statute.
(iv) Importing or exporting certain advertisements mentioned under section 3,4
and 5 of the Drug and Magic Remedies (Objectionable Advertisement) Act
1954 are prohibited under section 6 of the same statute.
If any act is committed in contravention to the provisions of the Drug and Magic
Remedies (Objectionable Advertisement) Act 1954, the offender is penalized under
the section 7 of the same statute.
No doubt that the Drug and Magic Remedies (Objectionable Advertisement) Act 1954
curtails the freedom of speech and expression in relation to advertisements, still the
prohibition is only in relation to advertisement relating to the drugs for diseases or
misleading or untrue advertisements. Hence this statute is considered as a reasonable
restriction falling under Article 19(2) of the Indian Constitution.
Apart from Drug and Magic Remedies (Objectionable Advertisement) Act 1954, an
autonomous body viz. Advertisement Standard Council of India controls and
regulates the activity of advertisement.
101 Supra., p66
88
Advertisement Standard Council of India was set up in 1985 to perform the following
functions.
(i) To access and ensure the truthfulness or an honest claim of an
advertisement.
(ii) To prohibit false and misleading advertisements and also to provide
safeguards against such advertisements.
(iii) To scrutinize the advertisement in relation to the offending public
standards.
(iv) To scrutinize whether the advertisement is in conformity with the public
decency.
(v) To provide safeguard against indiscriminate and arbitrary use of
advertisements.
(vi) To prohibit the promotion of hazardous or dangerous products through
advertisements.
(vii) To ensure fair and objective competition in the market of advertisements
which give correct and true information to the public and hence such a
public can make their choices through the advertisements.
This Advertisement Standard Council of India regulates and governs the
advertisements in a reasonable manner, and hence the restrictions placed by them are
constitutional.
(e) The Newspaper (Prices and Pages) Act 1956
The Newspaper (Prices and Pages) Act 1956 is the most famous statute in the history
of the press. The rules made under this statute was challenged in Sakal News papers v
Union of India102 case as well as in Indian Express Newspapers (Bombay) Pvt. Ltd. V.
Union of India103 . This statute confers powers on the central government for the
following aspects;
(i) It empowers the central government to regulate the prices of the
newspaper in relation to the number of pages. 102 Supra., p.46 103 Supra., p. 64
89
(ii) It empowers the government to make rules for the prevention of unfair
competition among the newspapers.
(iii) It also empowers the government to make rules in order to provide fuller
opportunities of the freedom of speech and expression of the newspapers
that have a smaller or limited circulation.
The object of the statute are no doubt appreciable, however the government chose to
make arbitrary rules which were challenged time and again. As clearly seen, this
statute confers a wide range of powers to the government. Now it was for the
government to use these powers in a wise, reasonable and fair manner. But the history
has shown that the government has used the powers conferred by The Newspaper
(Prices and Pages) Act 1956, to pursue its own goals, and hence the rules made by the
government came in conflict with the freedom o speech and expression incorporated
in the Article 19(1)(a) of the Indian Constitution and were declared unconstitutional
by the Supreme Court.
(f) The Copyright Act 1957
The Copyright Act 1957 was enacted with the object to prevent the unauthorized
economic exploitation of the work done by others, without the consent of the owner
of the copyright. This statute is applicable to literary, dramatic, artistic, musical work,
sound recording and cinematograph film. This statute deals with wide range of
contents, but the present researcher is confining his research only to the limited area
of The Copyright Act 1957 which is related to the freedom of speech and expression
inclusive of press and media.
The broadcasting is protected under Copyright Act 1957 section 2dd, and hence it
acts as a restrictive legislation. However with certain clauses of the section 52, of the
said Act, which speaks about the circumstances which do not constitute as the
infringement of copy right, the section can in no way is an impediment for right of the
press and media.
90
This balance was clearly shown by the Supreme Court when it came hard on Prasar
Bharati and ordered them to stop the live telecast of the matches. However covering
the incidence on news channels and few clips are shown, would not amount to the
infringement of the copyright.
The copyright law protects the freedom of Speech and expression as it allows the
news channels to cover any event as news. However it prohibits any wrongful gains
or any wrongful loss for any party in the event the party tries to exploit the work
under the garb of freedom of speech and expression.
(g) Prevention of Publication of Objectionable Matter Act, 1976
The Press Commission recommended the establishment of Press Council. It stated
that the function of the Press Council were to safeguard and protect the liberties of
the press. So also it was the duty of the press Council to evolve and maintain a
standard of journalistic ethics. This means that the press council had to lay down the
parameters for the printing and publication of any matter. The Press Council would
permit the printing and publication of only that matter which was ethical and hence
any objectionable matter would be prohibited by the Press Council. So the press
Commission was of the opinion that the job of the then The Press (objectionable
Matter) Act 1951 would be performed by the Press Council. Hence the Press
Commission recommended the repealing of The Press (objectionable Matter) Act
1951; and consequently in 1956, the said statute was repealed.
In years later it was proved that the Press Council was not efficient in prohibiting the
printing and publication of objectionable matters. Neither had it laid down any
standard of journalistic ethics. The press council had failed to impose a deterrent
check on the printing and publishing matter in an undesirable way. Consequently an
urgent need was felt to curb the printing and publication of objectionable matters. In
pursuance to this need an Ordinance was issued by the President on the 8th
December, 1975. The Prevention of Publication of Objectionable Matter Ordinance,
1975 prohibited the printing and publication of following matters.
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(i) Any matter which was against the sovereignty, security, stability and integrity
of India.
(ii) Any matter which would disturb the friendly relations of any foreign state.
(iii) Any matter which is indecent or immoral in nature.
(iv) Any matter which is in the form of incitement to offence.
(v) In the necessary cases if it was in the opinion of the authority’s then security
could be demanded from the publishers.
In the year of 1976, the said Ordinance was repealed and the Prevention of
Publication of Objectionable Matter Act, 1976 was enacted. This statute again acts as
a restrainment on the freedom of speech and expression inclusive of freedom of press
and media.
Section 2 of the Prevention of Publication of Objectionable Matter Act, 1976, states
that it includes within the scope of the said statute any book newspaper, newssheet
press, document etc.
Section 3 of Prevention of Publication of Objectionable Matter Act, 1976 defines
objectionable matters as follows;
(i) Any visible representations or verbal response which brings hatred or
contempt.
(ii) Any actions or word to constitute incitement to an offence.
(iii) Any printed material in order to seduce any member of the armed forces.
(iv) Any printed material which promotes disharmony or injects the feeling of
enmity or ill will among the different religious or linguistic sections of the
society.
(v) Any matter which tends to causes fear or alarm among the public or disturbs
the public peace or public tranquillity. The freedom of speech and expression
inclusive of freedom of press does not extend to the activities mentioned
above.
Further the statute empowers the central government any other authority
constituted under the Act to prohibit any matter which can be described as
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objectionable or prejudicial. If such a matter is already published, then the
statute authorizes the government to forfeit such objectionable publication.
The statute further authorized the government to demand security from the
press.
As it is clearly evident, this statute conferred very wide sweeping powers on
the government. This statute marks a high level mark of censorship. There
never had been such a draconic statute enacted before in the history of free
press. The fate of such a statute was short lived and the press once again
survived freely when this statute was repealed in 1977 by the Janata
Government.
(h) Press Council Act 1978
The concept of Press Council has ancient roots, and was established in Sweden in
1916 known as the ‘Court Of Honour For Press’. Today this concept is worldwide,
and the Press Council prevails in some form or the other in almost all the nations.
In India the Press Council was first established by The Press Council Act 1965. It was
established with a view of raising the journalistic standards. During the emergency
period, the Press Council Act was repealed and the Press Council was abolished. The
Press Council Act was once again enacted, after the Janata Party came into power,
immediately after the emergency, in the year 1978. This Act was based on the
structure of the Press Council Act 1965.
The functions of the press council are as follows
(i) To improve the standard of journalism.
(ii) To inculcate ethics in journalism.
(iii)To protect and promote the independence of journalism.
(iv) To improve the standards of news papers and news agencies
(v) To safeguard the freedom of press.
(vi) To foster the good taste among the public by improving the standard of
journalism.
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The Press Council of India enjoys twofold powers
(i) It enjoys the powers equivalent of the civil court
(ii) It has the power to censure. By virtue of this power, it can warn, admonish,
or censor any content, which the Press Council thinks is violating the
journalistic ethics.
The distinct feature of the press council is that it functions independently of the
government and keeps the government totally out of the purview of its functioning.
(i) The Prasar Bharati (Broadcasting Corporation of India) Act, 1990
The Prasar Bharati (Broadcasting Corporation of India) Act, 1990 is a milestone in the
history of press and media. For the first time in the history of Independent India the
government proposed to free two important channels of media (radio and
Doordarshan) of the government control. This was a very big step in making these
channels independent of government control. In fact this was such a big step that this
statute was not implemented for seven years. In 1997 the government actually
implemented the statute and provided independency to radio and doorshan the two
very influential mediums of broadcasting. Before 1997 the government could
influence the news as the broadcasting channels of radio and doordarshan were under
the government control. So it is but natural that these channels could not impart free
and objective views which were against the government policies. After the
independency the radio and the doordarshan channels can broadcast freely and
fearlessly any news or program.
The highlighting feature of the Prasar Bharati Act is the establishment of the
corporation. The corporation known as Prasar Bharati is established under section 3 of
the Prasar Bharati (Broadcasting Corporation of India) Act, 1990. The functions and
powers of the Prasar Bharati Corporation are enumerated in section 12 of the Act as
follows;
(i) The essential function of the Prasar Bharati is to organize and regulate the
public broadcasting.
94
(ii) It has to strike a balance between the broadcasting the radio and television
regarding development.
(iii) The Prasar Bharati has to promote the unity and integrity of the nation.
(iv) The Prasar Bharati has to inculcate the values enshrined in the Indian
Constitution while broadcasting.
(v) It has to ensure that the broadcasting is done objectively freely and fairly
in the matters of public interest as well as the national interest.
(vi) While broadcasting the citizens right to know and information has to be
protected.
(vii) It has to give weightage to the fields of education, agriculture,
environment, science and technology and overall development while
broadcasting.
(viii) While broadcasting it has to give ample coverage to diverse cultural
activities and linguistic programs.
(ix) It also has to give due coverage to sports and games so as to encourage
healthy competitive aspiration of the public.
(x) It has to provide appropriate programs to cater to the special needs of the
youth, minorities, and the tribal communities.
(xi) It has to broadcast program to solve the problem of women and help in
women empowerment.
(xii) It also has to promote and secure social justice to the weaker sections of
the society. So also it has to help to eradicate exploitation of the weaker
section inequality and evils such as It has to protect the interest of the
weaker or the backwards sections of the society and also the people
staying in remote areas.
(xiii) It has to take special efforts to protect the interest of the children and
abolish child labour. Further it has to protect the vulnerable sections of the
society such as the physically and mentally handicapped people.
(xiv) It has to broadcast the program in such a manner that the national integrity
is promoted.
(xv) It has to ensure the best utilization of the broadcast frequency and high
quality reception.
(xvi) It has to promote the research program to update the broadcasting
technology.
95
(xvii) It has to expand the broadcasting facilities by establishing additional
channels of transmissions at various levels.
(xviii) It has to take steps to ensure that the broadcasting is conducted as public
service.
(xix) It has to provide a system for gathering news for the radio and television.
(xx) It has to help in negotiating the purchase or acquiring the rights and
privileges in respect of sports events, films serials etc.
(xxi) It has to establish and maintain libraries of radio and television programs
and materials
(xxii) It has to conduct programs regularly for audience research or for technical
services.
These functions of the Prasar Bharati Corporation are evolved by the Corporation in
the form of broadcasting code applicable to the All India Radio and all the
broadcasting and the television organizations. This code exists in the form of the
cardinal principles which have to be ideally followed by all the public communication
channels.
This statute is considered as an important landmark for conferring independency on
two very important channels of media. Television and radio have the tremendous
impact or influence on the public, and hence they are considered as a very potent
medium of communication. Prior to 1997, that is the implementation of The Prasar
Bharati (Broadcasting Corporation of India) Act, radio and television were under the
control of the government; the consequence which is that these mediums of
communication were deprived of expressing their views or opinions freely and
fearlessly against the government or its policies. Not only this but these channels had
to project only the government’s views and had to paint the government in a positive
angle. After the implementation of The Prasar Bharati (Broadcasting Corporation of
India) Act, these channels of public communications became free from government
control and therefore were able to freely criticize the government policies. So one can
say that The Prasar Bharati (Broadcasting Corporation of India) Act is the real
foundation of a democratic state within which a free press exists.
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(j) Cable Television Networks (Regulation) Act 1995
Before 1990 the Doorsharshan enjoyed the monopoly as far as the broadcasting was
concerned even though it was under government control. In 1990 the policy of
liberalization was implemented due to which the foreign duties were abolished;
because of which the gates were opened to foreign channels. Due to which the Indian
viewers got access to foreign channels by satellite transmission. This gave rise to
another problem which was that there was no law to regulate either foreign channels
shown from satellites or the new channels started in India. On public demand the
cable operators telecasted only the foreign channels or the newly started Indian
channels. Due to which the programs of Doordarshan were completely sidelined and
hence Doordarshan lost its monopoly. To combat this situation The Cable Television
Networks (Regulation) Act 1995 was enacted to regulate the cable television. Cable
television is not only an important channel of public communication but has wide
publicity; its presence is felt in nearly every house. The registering authority
constituted under this statute is not only empowered to regulate the cable television
but it also has to control, govern and deal with the incidental matters there in.
The term ‘cable operator’ is defined in section 2(aa) of the Cable Television Networks
(Regulation) Act; and the term cable service is defined in section 2(b) of the same
statute.
Section 3 of the same statute makes the registration of the cable operator mandatory.
It also lays down the procedure for registration of the cable operators. Failing to
register the cable operator may be subjected to punishment. The compulsory
registration is a reasonable restriction on the freedom of communication.
The Cable Television Networks (Regulation) Amendment Act 2008 has amended
Section 8 of the said statute as follows;
It states that the cable operators should compulsory re- transmit the programs of
Doordarshan channels;
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(i) Two terrestrial channels
(ii) One regional channel.
(iii) Both these channels should be broadcasted in prime band.
(iv) No deletion, or alteration, or modification is permitted while transmitting
the said channels.
(v) According to section 3 the Prasar Bharati Corporation has the power to
specify the number and the name of every Doordarshan Channel to be re-
transmitted.
This amended section 8 of the said statute puts restriction on the freedom of press and
media by way of compulsory transmission of prescribed channels.
Further the section 9 of The Cable Television Networks (Regulation) Act 1995
imposes another reasonable restriction by way of using only the equipments and
instruments which are prescribed by Indian Standards Act 1986. This section debars
the use of any other sub standard equipments and instruments. If such sub standard
equipments and instruments are used then they may be seized and confiscated
according to the section 11 of the said statute. Another restriction on the public
communication is placed under section 10 of the statute; which prohibits the
interference of the cable television network with any authorized telecommunication
system. The last restriction placed on the press and media and public communication
is mentioned in the section 20 of the statue which prohibits the operation of the cable
television network in public interest. As it is known that the concept of ‘public
interest’ is coloured by various dimensions, it becomes difficult to figure out, which
dimension it is. But time and again the Indian judiciary has pointed out that the public
interest is one of the most important reasonable restrictions falling under Article 19(2)
of the Indian Constitution.
(k) Right to Information Act 2005
The very essence of the executive to work in closed chambers has been done away for
good with the implementation of Right to Information Act 2005. This statute has put
the last nail in the coffin of the doctrine of denial of government records and
documents in the so called ‘public interest’. Now this very statute opens the gates of
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information in public interest. The objects of this statute are very weighty for the
prevalence of the healthy democracy.
(i) The first and foremost object of this statute is to bring transparency in the
government operations. Once all the government operations and modes of
functioning are put under the public scanner, automatically the government
official becomes accountable for their actions. Once the actions of the
government officials through the access of the government records and
documents are made public, the scope of corruption naturally reduces.
(ii) The statute not only opens the access to information through the
government records, but very importantly confers a legal or a statutory
right to information on the citizens. So now getting information from
government departments is the legal right of the citizens.
(iii) This statute was enacted for the prime purpose of the disclosure of the
government documents. Up till now there was no access to the government
documents, and hence information regarding the government documents
could not be scrutinized by public and they had to take the word of the
government officer regarding such documents. Now because there is
access to government documents, an individual can check, whether any of
his right or liberty has been violated.
(iv) The statute makes the provision for the establishment of the Central
Information Commission and the State Information Commission.
Section 3 of the Right to Information Act 2005 confers a legal right on the citizens
that is the right to information. The consequence thus being that if the information is
denied to the citizen his right is violated and such an individual can take recourse to
legal remedies available under the statutes. Further the statute not only confers the
right to information on the individual but imposes an obligation on the government
authority to furnish the required information under section 4 of the Act. According to
section 4 of the Act the authority has to maintain and publish all its records within one
hundred and twenty days, after the enactment of this Act. The authority also has to
maintain the records stating the particulars of the organs, its functions and duties
Section 6, of the Right to Information Act 2005, states that a request through the
electronic media can be made for obtaining the required information and the section
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has incorporated a detailed procedure for doing so. The right to information under this
statute is circumscribed with the exemptions mentioned under section 8 of the said
Act. Disclosure of the information can be denied on following grounds;
(i) If the information endangers the solidarity and integrity of India.
(ii) If the publication of the information is denied by the courts of law.
(iii) The information cannot be revealed if it falls in the doctrine of
parliamentary privileges.
(iv) If the information is regarded as a confidential matter related to commerce
or trade secrets.
(v) Information received from any foreign government related to a national or
international issue may not be disclosed.
(vi) Information which endangers the physical safety of any person or puts a
person’s life in peril may not be disclosed.
(vii) Any information which causes hurdle or interference in the process of
investigation may not be disclosed.
(viii) Any cabinet records or records of the secretary or any other related matter
will not fall within the scope of this Act.
The disclosure of any document which is prohibited by the Official Secrets Act 1923
may be disclosed under the Right to Information Act. As it is accepted that the public
interest of the disclosure of such a document will prevail over the protected interest of
not disclosing the same. Here the protected interest has to give way to the public
interest as it is of paramount importance and has to prevail over the protected
interests.
Section 21 of the Act provides the defence of good faith for any action done in
consequence of it. An overriding effect of the Right to Information Act 2005 has an
overriding effect over the Official Secrets Act 1923.
The Right to Information Act, 2005 has tremendous impact on the freedom of press
and media. This Act has cleared all the impediments which were present in securing,
gathering and disseminating information. Barring a few exceptions the media can get
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access to any information and communicate it to the public. It can be stated that The
Right to Information Act, 2005 has made things easier for press and media. By the
virtue of this Act, now it is possible for the media not only, to project more news, but
also to give specific and correct information regarding the government policies and
action. As a result of this the public can get a clear picture regarding the whereabouts
of any public officer. So in the real sense, this Act helps to bring transparency in the
governance.
Another important impact of this statute is that it acts as an indirect check on the
public authorities. As all its information relating records and documents can be
accessible to the public. This makes it compulsory for them to maintain their
documents and records according to the prescribed procedure and order.
Another essential feature of this Act is that it has brought accountability of the public
authorities.
One more welcome advantage of this statute is that the procedure prescribed there
under is very cheap and expedient.
One can say that the Right to Information Act, 2005 has really brought a revolution in
the functioning of the government and other public authorities.
The statute in a way acts as a supplementary asset to the press and the media for the
broadcasting of news. In the present era of public news it can be said that the Right to
Information Act, 2005 is the happening statute of the present times.
5. Statutory bodies
The freedom of press and media is restrained by, first the constitutional reasonable
restrictions prevailing in Article 19(2) of the Indian Constitution, secondly by
legislative enactments, and lastly by certain autonomous bodies created under those
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legislative enactments. Some of these self regulating bodies are empowered to put
reasonable restrictions on the press and media, by way of imposing rules or by
prescribing procedure to be followed by the press and the channels of the media.
(a) Ministry of Information and Broadcasting
This Department of Information and Broadcasting is not an autonomous body, and is
a part of the government but it is regarded as fountain head of media and
broadcasting. This is the apex or the head authority for the information and
broadcasting service; because of this fact, the Department of Information and
Broadcasting is included in this part of the research. This body has to perform many
vital functions as follows,
(i) It has to implement such steps which are necessary for helping the people
to have access to information.
(ii) It has to regulate the channels of mass communications such as the radio,
television, press and other publications to communicate information
effectively.
(iii) It has to strike a balance between the public interest and the commercial
interest. It has to give equal weightage to both.
(iv) The foremost function of this department is to make rules and regulations
for information and broadcasting of news.
(v) It has to regulate the services of the All India radio and Doordarshan news.
(vi) It has to categorize and classify the films which are to be exported and
imported.
(vii) It has to take measures to ensure the rapid growth, progress and
development of the film industry.
(viii) In order to promote cultural exchange in thought and values, the
department of information and broadcasting has to conduct and organize
film festivals.
(ix) This department of Information and broadcasting in order to further the
government policies has to aid and assist in advertising and visual
publicity.
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(x) A very crucial task of this department is to manage the press relations and
the government policies which may not be in conformity sometimes. It has
to make an attempt to make the government policies acceptable. It also has
to get a feedback on the said government policies.
(xi) For the purpose of The Press and Registration of Books Act 1867 the
ministry of the information and broadcasting is a competent authority to
regulate and administer the press and newspapers.
(xii) The main function of this department is to disseminate information of the
national importance in relation to India, outside the state as well as within
the state.
(xiii) This department has to hold programs for research and training of the
people related to the field of media communication, information and
broadcasting.
(xiv) This department has to promote the methods of communication pertaining
to traditional folk art forms in furtherance of publicity related to issues of
public interest.
(xv) This department also has to take steps to promote international
cooperation, in respect of information and mass media.
By performing the enumerated functions the Ministry of Information and
Broadcasting governs and regulates the press.
(b) Press Council.
The press council is constituted by the Press Council Act 1978104.
In a way it can be regarded as quasi judicial authority as it has the power of civil
court and also has the power of censure. The Press Council governs and regulates the
press in a following manner;
(i) It can make rules to preserve, promote and ensure the freedom of press.
It has to maintain the independency of the press.
(ii) It has to lay down the guiding principles to improve the standard of the
newspaper and the news agencies.
104 Supra., p 92
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(iii) It has to lay down a code of ethical conduct to be followed by the
people involved in the news agencies.
(iv) It has to help and promote the journalists to inculcate professional
standards of journalism.
(v) The Press Council has to undertake such measures so that there is a
rise in the standards of public taste and newspapers have to cater to it.
(vi) It has to create a sense of awareness and responsibilities among the
journalists as well as the citizens.
(vii) It has to promote a sense of fair and an objective value among the
journalists so that they regard imparting news is a public service.
(viii) To scrutinize any activity that is likely to restrict the dissemination of
news; which is of public interest and importance.
(ix) It has to keep vigilance over the newspapers taking any financial
assistance from a foreign source, so that the integrity or sovereignty of
India is not endangered.
(x) To keep a watch on the circulation of a foreign newspaper and also has
to study the impact of such a circulation.
(xi) It has to promote a congenial and professional relationship between all
the people who are engaged in the printing, and publication process of
the newspapers.
(xii) It has to keep a strict watch on the formation of any monopoly of a
newspaper which acts as a threat to the independency of the press.
(xiii) It has to study and express its opinion in such cases where the central
government has asked its opinion on any important matter.
(xiv) It also has to perform any other duty which is incidental to the above
activities.
(xv) It has the power to warn, admonish, or censure the newspapers.
Under section 8 of the Press Council Act 1978, the Press Council is considered as an
Appellate Authority. Under the statute an Appellate Board comprising of the
Chairman of the Press Council and other members is constituted. The press council
has been given very wide powers and one can get the impression that it is a very
powerful body. Howsoever it has been proved, that it is more of an advisory body. It
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is like a roaring lion (Press Council) that is set free in the universe of the press,
however this lion is deprived of the attacking teeth and hence it only roars.
(c) Press Information Bureau
The Press Information Bureau is another authority which acts as a subtle check on the
public communication and the media. The office of its headquarters is situated in New
Delhi. The Press Information Bureau comprises of a Director General along with
eight other additional Director Generals, headed by the Principal Director General of
the department of media and communication. As the Press Information Bureau is
constituted of members from the government department, it can be considered as an
extended limb of the government.
The following are the functions of the Press Information Bureau
(i) To communicate to the press and the electronic media, the information
related to the government, its policies, plans and schemes.
(ii) The main function of the Press Information Bureau is to act as a link
between the government, media and the public. It has to give a
feedback to the government regarding the media’s activities and the
people’s mood and reactions, regarding any of its policies and plans.
(iii) The Press Information Bureau has a separate and the distinct unit to
deal with the issues of the publicity of the Prime Minister’s Office.
This unit has to compile and supply information regarding the Prime
Minister’s office, and the Cabinet Secretariat; to the media and press.
This separate unit of the Press Information Bureau has to continuously
work for all seven days.
It appears that this Press Information Bureau plays a minimal role in governing and
regulating the media and the press but plays a major role in acting as a link between
the government, media and the public.
(d) Registrar of Newspaper for India
A registrar of the newspapers is constituted under the Press and Registration of Books
Act 1867. Registrar of the newspaper is constituted under section 19(a) of the statute.
The Registrar of newspapers for India is appointed by the central Government. Other
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officers under the general superintendence of the Press Registrar may be appointed by
the central government. These officers have to assists the Press Registrar in
performing the functions and duties of the office. Such officers who are appointed by
the central government have to function in accordance with the orders issued by the
Press Registrar; and have to perform the allocated functions.
The main function of the Registrar is to maintain a register of newspapers in the
prescribed manner.
The Registrar for newspaper for India regulates the press only to the extent of
maintaining the identification and the details of the news papers in the register. The
Registrar does not make any rules for the governance of the press.
(e) Telecom Regulatory Authority of India
Telecom Regulatory Authority of India was established under the Telecom
Regulatory Authority of India Act 1997 on 20th February 1997. The main object of the
Telecom Regulatory Authority is to govern and supervise the telecom services. The
following are the functions of the telecom authority.
(i) It can issue directions regarding tariff and interconnections and Direct to
Home services.
(ii) It can make recommendations regarding the terms and conditions of a
license of a service provider.
(iii) It also has the power to revoke the license.
(iv) It has the power to regulate the telecom services including the power to fix
and revise the tariff regarding the telecom services.
(v) It has the power to compel the compliance of the terms and conditions of
the license.
(vi) It can also fix the terms and conditions of interconnectivity between the
service providers.
(vii) It also has to take measures to secure the technical compatibility between
different service providers.
(viii) It can also make norms to regulate the revenue derived from the
telecommunication services among the different service providers
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(ix) It has to lay down the guidelines to improve the standards of quality with
respect to service provided by the service providers.
(x) It has to check by conducting a survey whether the service providers,
provide quality service to the consumers.
(xi) It has to lay down the rules regarding the period of time of local and long
distance circuits of telecommunications.
(xii) It has to maintain a register containing all the issues related to the
interconnectivity agreements
(xiii) It has to take steps to see that the universal service obligations are
effectively complied with.
(xiv) It may also levy fees and other charges in respect of telecommunication
services.
(xv) It may have to perform any other additional administrative or financial
function as may be directed by the central government.
This Telecom Regulatory Authority of India puts reasonable restrictions on freedom
of speech and expression by way of telecommunication; by imposing regulatory
norms and conditions.
(f) The Advertising Standard Council of India
The Advertising Standard Council of India was established in 1985 with the object to
ensure the honesty and truthfulness of the advertisements. It has to ensure whether the
advertisement of the product really matches with the characteristics or the contents of
the product. The functions of The Advertising Standard Council of India have already
been dealt in detail in foregone pages.105
(g) Directorate of Field Publicity
The office of the Directorate of Field Publicity was established in 1953. It was
established to give publicity to the five year plan and hence it was known as “Five
Year Plan Publicity Organization”. Later the scope of the functions of this “Five Year
Plan Publicity Organization” widened and hence it came to be known as Directorate
105 Supra., p. 88
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of Field Publicity. The powers and the functions of the Directorate of Field Publicity
are as follows;
(i) To inform and publicize the five year plan of the government.
(ii) To educate the people through the information regarding the plans of
the Government.
(iii) To motivate and ensure the involvement of the people in the role of
development.
(iv) To give special attention to the people who are at the grass root level
by informing to them the policies of the government.
(v) To take those measures which will help to achieve the horizons of
development which were set by the founding fathers of the Indian
Constitution.
(vi) To formulate and gather public opinion regarding the government
programs.
(vii) To promote and mobilize public participation in the process of
development.
(viii) To take special efforts to inform the government policies to the weaker
sections of the society.
(ix) To take such measures to ensure the participation of those people who
are remotely situated in the society, or those who belong to the
marginal section of the society; to help them to be aware and
participate in the government program.
(x) To create a sense of awareness about issues which are of national
importance.
(xi) To communicate information regarding the issues of social relevance
to the various sections of the society.
(xii) To communicate to the government the public opinion regarding its
programs and policies. This helps the government implement its
programs and policies and also to take some corrective measures if
required.
The role of the Directorate of Field Publicity is very crucial as it acts as a two way
channel of information; because the government is informed of the public opinion and
the public is informed of the government policies. So it can be said that its role is to
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act as a bridge or a linkage between the government and public at large. Thus the
office of the Directorate of Field Publicity helps in bringing public awareness,
education, and abridging the gap between the government and the people.
(h) Central Board of Film Censors
The Cinematograph Act empowers the central government to appoint the Central
Board of Film Censors. The original name of this board was ‘Central Board of Film
Certification,’ but in 1983 this name was changed and the board was given a new
name and was called as the ‘Central Board of Film Censors’. The central board of
film censors consists of not less than twelve and not more than twenty five members.
The central government appoints the Chairman of the Central Board of Film Censors,
and with his advice the central government appoints other members of the Board.
Sometimes the central government may appoint honorary members. It is the general
practice that such honorary members are remunerated with allowances for attending
the meetings of the Censor Board. The Censor Board offices are currently situated at
Mumbai, Chennai, Kolkata, and Trivandrum. The headquarters of the Censor board is
situated at Mumbai.
The main object for the constitution of this board is to categorize, classify and impose
censorship on the films; as well as to certify the films for public exhibition.
The Censor Board classifies the films into four groups of classification
(i) Certification ‘U’
The films which are categorized as ‘U’ are open for public at large, including
children to be viewed. Such films are categorized as unrestricted for public
exhibition.
(ii) Certification ‘U/A’
These types of films are also to be viewed by all the sections of the public,
but in cases of children below the age of twelve, they can view the film, but
with parental guidance.
(iii) Certification ‘A’
Such types of films are open to be viewed only by a particular section of the
society. Only those members of the society who are in the adult group that is
above the age of eighteen years.
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(iv) Certification ‘S’
This certification ‘S’ is granted by the board in very rare cases. Such types of
films are opened to be viewed by a very limited section of the society for
example a film may be opened to be viewed by a particular class of a
society, for example only doctors may be allowed to view the film.
These certifications are issued through the regional offices of the censor board which
are located in Mumbai, Bengaluru, Kolkata, Chennai, Cuttack, Guwahati, Hyderabad,
Trivandrum and New Delhi.
Appeal against the decision of the Censor Board lies with the Film Certificate
Appellate Tribunal.
There are many cases relating to the certification of the film which have been
discussed earlier. The point to be noted here is that the Censor Board imposes
restrictions on the freedom of speech and expression through films, but these
restrictions are again falling in the ambit of Article 19(2) of the Indian Constitution.
6. Concluding Remarks
The Indian Constitution under Article 19(2) empowers the government to impose
restrictions on freedom of speech and expression. This power to make restrictions is
limited by the doctrine of reasonability. That means the restriction on the restrictions
to be imposed by the government is the doctrine of reasonability.
The government by invoking its Constitutional authority has enacted a number of
legislations which have been dealt in this chapter. These series of legislations by
imposing restrictions define the scope and the ambit of right to freedom of speech and
expression inclusive of freedom of press.
The right of press is considered to be one of the most crucial rights on which the
principle of democracy survives. It is this press which acts as a linkage between the
public and the government. The press communicates the public opinion to the
government; and communicates to the public the plans, intentions, schemes, program
of the government. The government is in a continuance attempt to see that the press
communicates to the people only what it wants. The press on the other hand wants to
expose the government’s political schemes or arbitrary intentions if any. It is because
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of this aspect that the government tries to curtail the scope of freedom of press. Some
legislations in fact confer and promote the freedom of press, but sometimes a
draconian legislation which strips the press of its freedom, for example as in the case
of Prevention of Publication of (Objectionable Matter) Act 1976; the fate of such
legislations is very short lived and the said the statute had to be repealed the very next
year.
The scope of the freedom of press is no doubt demarcated by a number of legislations,
but nevertheless, freedom of press is protected and survives freely in the Indian Legal
System. Now, one has to see what the press and media do within the prescribed
freedom. Hence the next chapter deals with this aspect which is this aspect that what
role does the press and media perform within the prescribed fear.
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CHAPTER IV
ROLE OF MEDIA IN DEMOCRACY
“The media's the most powerful entity on earth. They have the power to make the
innocent guilty and to make the guilty innocent, and that's power; because they
control the minds of the masses.”
—Malcolm X
1. Introduction.
2. Role of the media in a democratic society.
(a) The role of the media as an unbiased informer.
(b) Media’s role as an educator.
(c) Media’s role as a mentor.
(d) The role of the media as a guardian of the society.
3. Impact of media
(a) Positive impact upon the society.
(b) Negative impact upon the society.
4. Media and right of fair trial.
(a) Position of Media Trial in United States of America.
(b) Position of Media Trial in United Kingdom.
(c) Position of Media Trial in India.
5. Conclusion.
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1. Introduction
The media is considered as the backbone of the democracy. The media disseminates
the unbiased information and empowers the masses with the power of knowledge.
The media imparts knowledge regarding various subjects like political affairs, cultural
affairs, world events, crimes, policies of the government, sports entertainment,
environment, science technology and development. The media reveals each and every
aspect of life on this universe, as there is no aspect which is not touched upon by the
media. Media plays a very crucial and intricate role in a democratic setup, as the
voters on the basis of the information projected by the media, frame their opinions
and elect the government.
The people also make up their mind as to which people the power should be vested
in. The media identifies the problems in a society and serve as a medium for
deliberation. The media is also considered as a watchdog and is relied upon for
uncovering errors and wrongdoings by those who are in power. It is therefore a
reasonable assumption that the media adheres to certain objective, fair and ethical
standards while performing their functions. It is on this assumption that the views
projected by the media are true, and objective that the democracy thrives upon.
In generating a democratic culture that extends beyond the political system and
becomes engrained in the public consciousness over the time, the role of the media is
vital. It is through this media that people share their experience, learn and become
aware of the happenings of the society. It is because of the constructive political
debates held by the media, that various options and policies are opened, which are
responsible for the development. Another very important aspect is that, the media
functions in open public and therefore has greater effect vis-à-vis to a person who
functions or makes a statement in a private chamber. The media to function
effectively and efficiently, it must be objective. So also the journalist should
necessarily be an impartial and unbiased observer who is not engaged or connected in
any way with events or the issues; but merely records them impartially. This requisite
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can be considered as the most indispensible founding stone for a healthy media
industry to exist in the democracy106.
2. Role of the media in a democratic society.
Media has occupied the most vital position in a democratic setup and constitutes the
very bedrock of democracy. The democracy in absence of the media will be
democracy which would be an aimless, futile exercise of attempting to be a
democratic set up. The democracy will never meet the expectations of the people if
media is eliminated. This means in absence of media there cannot be a democracy in
true sense. One cannot undermine the role of media in a democratic set up. The most
essential and fundamental function of the media is to project before the society only
the bare truth, and should not tamper the facts without fearing or favouring any one.
If the media has to fear, it should be afraid only of the God.107 The role of media in a
democratic society has various dimensions. In this chapter the researcher has made an
humble attempt to analyse the dimensions of the media.
(a) The role of the media as an unbiased informer.
In any country for the smooth functioning of the democracy, it is essential that the
media should be given a free hand. The media should report freely, it should be able
to comment fairly, and if needed it should be in a position to criticize without any
fear, in the interest of the general public.
According to Hohfeld every right has a corresponding duty. There can be no right
which is not correlated with the corresponding duty. Similarly the media is no
exception, and has rights as well as duties. All the time only the rights and powers of
the media are focused upon; however there are very duties imposed upon the media.
The duty is to act as an informer of the society. This is a very demanding, taxing, and
106 Sivakumar S. Halsbury’s Law Monthly, February 2009. 107 Altheide DL, Michalowski RS (1999) Fear in the News: A Discourse of Control. The Sociological Quarterly 49: 475-503
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a very intricate duty imposed upon the media. It is on this information that the public
formulates the public opinion or the crosscurrent of the public opinion flows. On the
other hand it is very important that media stick to their duty, because if they fail in
their duty the democracy will suffer heavily. If media does not discharge its
responsibility independently in any democratic country, the politicians are bound to
behave like dictators or even worse than them. As Benito Mussolini had once rightly
said, “Democracy is a kingless regime infested by many kings who are sometimes
more exclusive, tyrannical and destructive than one, if he be a tyrant”.108 The fear of
being exposed will keep the politicians on their toes and they will be accountable to
some extent. This will prevent them from being rash, corrupt, as they will realize that
if they behave in such way their days in powers will be numbered. So the media while
playing a role of an informant also acts as a deterrent check on the tyrannical or the
corrupt aspirations of the politicians or any other public figure.
The first and foremost duty of the press is to be unbiased informer. The main function
of the media is to equip the masses with information. When the term ‘information’ is
used, it has to be assumed that the information so provided by the press shall be
unbiased. One thing here has to be noted that the role of press is not reporting, but
unbiased reporting. The biased reporting will kill the democratic spirit itself, while the
unbiased reporting will enable democracy to blossom or flourish.
It therefore becomes essential to understand the concept of the term ‘unbiased’. Any
information will be deemed to be unbiased only if it fulfils the following criteria
(i) Information should be true, and it should be verified to be true.
True information means that the facts or the interpretation of those facts are in
existence. Any facts or the interpretation there of which does not exists is said
to be untrue or false. If the information is untrue or false then it is liable for
two consequences. One, that the agency of media who gives false information
will be caught in a network of libel or slander. The other grave consequence
which is more dangerous is that the foundations of the democracy will be
108 Wåhlberg Anders, Sjöberg L (2000) Risk perception and the media. Journal of Risk Research 3: 31-50
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shaken as the public will not be able to know and understand the real facts.
The other aspect of this criterion is that the information should not only be true
but should pass the test of verification. That means the information which the
media passes on to the public should be supported by evidence. The media
cannot project the information based upon some vague assumption or wishful
thinking.
(ii) The information should be projected in public interest.
The very cause for the media to survive is to protect the public interest. Any
information which the media wants to gather, collect, disseminate and
broadcast should necessarily be to protect the public interest. It should be
remembered that the media exists and functions only to protect the public
interest. Hence the media cannot impart any information which is contrary to
public interest. To put it in other words the media should not impart such
information to promote its selfish gains. Regardless of whatever is the nature
of the news, the media should project it only in the interest of the public.
While reporting any sensational matter, the media should report it in such a
way that the peace and tranquillity is not affected. Further the media should
remember that it plays a very important role of informant, public interest is of
paramount importance and is to be protected at any cost. The creation and the
existence or the survival of the media is only to protect, promote and secure
the public interest.
(iii) Information to be imparted in good faith that is without any malice,
This criteria is supplementary and the complementary aspect of public interest.
As the media plays the role of the informant, it is mandatory upon the media to
impart the information only and only in good faith. The activity of imparting
the information should not be tainted with malice. The media should not
convey any information to the public at large, with feeling of jealousy or
hatred. Neither should the media communicate any matter for spiteful reasons,
nor should it cover any news rashly only for the sake of gaining popularity.
The different channels of the media should not engage in unethical and unfair
competition of reporting the news at the earliest, and lastly end up giving
incorrect version of the issue, thereby causing malice.
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(iv) Reporting the incidence as it occurs without colouring it with one’s own
opinion.
The media is only an agency to report the incidences, issues, or events; so the
media should report the matter only as it occurs. The media should report the
bare fact without giving its own view, allowing the viewers to formulate their
own independent views. The media enjoys such a capricious position that
sometimes it only changes the angle of the news whereby the whole focus of
the news changes. This aspect of either highlighting or to downplay any issue
should be avoided by the media. It should not paint or colour the news with its
own thinking or ideas. The job of media is only to report any issue, and not to
act as a judge and pass a judgment on that issue. Practical experiences show
that the media projects the news in such a manner as it wants to be seen by the
public.
(v) To impart the news impartially.
This aspect is the most important ingredient of free media. Free media means
that the media should report the matter without any favoritism. It should not
happen that the news reporters report the news for some consideration. In the
cases where the news which is actually an advertisement, but is disguised as a
news item, is misleading the public who believes it to be news; is virtually
misguiding the public. Hence the news agency or media who adhere to such
practice will not be considered as a free media, irrespective of the fact that there
was no external compulsion on it to do so. If the media continues to adhere this
practice of projecting any good or bad news based on the considerations
received by them, then the whole spirit of democracy will collapse; as the media
will project only what rich people will want, and people believing the media
will act likewise, depriving themselves from enjoying the real democracy.
From the above points it is clear that what is meant by unbiased information.
The media is only an instrument of imparting the news; so it should impart the news
in an unbiased manner. It should not tilt the balance in the favour of any one; on the
contrary it should only inform the public of any issue or event. The media should not
take any side or express it own opinion in front of the public, otherwise the public will
tend to feel that the view of the media, is rational and correct. If this happens, then the
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media will not be an agency of imparting information, but will perform the role of a
dictator. As there is no place of a dictator in a democracy, it will collapse. The role of
the media is only to give information and not to assess it. But unfortunately the media
generally expresses its opinion or evaluates the situation. In the recent case of JNLU
students protested with anti India slogans; and one of the students was arrested by the
police. Some Media Channels trying to project his innocence stated that the arrested
student was not shouting any anti India slogans, conveniently forgetting that he was
the very part of the same protest where the anti India slogans were being given. This
is just an instance to show how the media is capable of projecting the news tainted by
its own opinion. One has to take a note of the fact that the media is not empowered
with power to adjudicate; but its role is only to impart information in an unbiased
manner.
(b) Media’s role as an educator
In a country like India, where there is illiteracy on one hand and the confidence of
people on media on the other, the responsibility of the media increases automatically.
Illiterate people will blindly follow the old traditions and beliefs, causing injustice and
harm to the society. For example it is the old belief that a son is a boon and a daughter
is a curse. The people in India, in order to get rid of this curse, kill the daughter
(female foeticide). This had a tremendous adverse impact on the male- female ratio.
The media then conducted a campaign by various ways, making the people realize
that a girl is no way any less as compared to a boy; and by killing the girl child or
aborting the fetus, the people are not only doing a moral wrong but also are
committing a crime. The media campaign played a significant role in change of the
outlook towards a girl child as a result of which such atrocities on girl child are
reduced.
The media performs vital role in educating the masses in the following ways.
(i) Education through information.
Lack of information results into ignorance and securing or getting information
promotes education. This means that information is very vital for education;
and that many a times education depends upon information. The most valuable
role of the media is to educate the public through information. When the
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media gives the exit poll analysis the whole community who does not
understand the complexity of the constitution is educated to the extent of how
much majority of a particular party is required to form the government. The
same can be said about the budget bill, when communicated by the media, the
people get many insights in the financial matters. Almost every type of
information imparts education in some way or the other. The crucial aspect of
education through information is related to that section of society which is
remotely placed or the illiterate section of the society. This underdeveloped
section of the society may have never been in schools, but they learn through
the medium of television. Other channels like the radio or the press plays
equally important role of educating the masses. The prime function of the
media is to impart information, but the ancillary aspect of this function is to
educate the masses.
(ii) Bring awareness regarding individual’s right.
The media enables the individuals to know their rights. India is not very
developed in the educational aspect, because of which many people are
unaware of their rights. It is the media who makes the people aware of their
rights. The media is responsible for such a high percentage of voting, as the
people were made aware of the importance of the constitutional right to vote.
The media is also responsible for enlightening the weaker sections about their
rights, like the women, children and the senior citizens. Media has played a
tremendous role in the empowerment of women, and uplifting the status of
them. The children are also made aware of their rights by the media.
(iii) By way of advertisements
One can say that the era of advertisements prevails today. Advertisements also
promote education regarding the product, commodity etc, however education
through commercial advertisement is limited. Apart from the commercial
advertisements there are certain advertisements such as jaago grahak jaago, in
respect of consumer courts or the advertisements bringing out the ill effects of
vices such as smoking or drinking. Such advertisements play a meaningful
role in educating the masses.
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Well educated citizens can make democracy more meaningful.
It is through media that people become aware of so many aspects of life of
which they are normally ignorant.
(c) Media’s role as a mentor.
In a country like India the media is expected to play the role of a mentor. The job of
the mentor is to educate the ward, and make him independent. The mentor should
bring the ward to such a state from where the ward can take a decision on his own.
Similarly the media plays a role of a mentor. It should only uplift the status of the
individual and make him independent of formulating his own opinion. The media
should not put its opinion in the mouth of the public. In other words, the media must
not make the people believe what it wants the people to believe, but should make the
individual capable to think independently. Only when a person will start thinking
independently, it can be said that a society is enjoying democracy; otherwise the
democracy will be a farce. For a mentor it is very easy to influence the ward or psyche
the ward and make the ward believe that his mentor is right. But a good mentor never
does like that. He makes the ward capable of thinking independently. The role of the
media shall also be the same. The media should present all the true facts and it should
throw light on all the aspects equally. After doing so it should give equal
representation to all sides and put forth all the merits and demerits of the issue; and
only then allowing the citizens to make their choices independently.
The media being the mentor of the masses should emphasize on the following aspects;
(i) Foster the spirit of brotherhood among the masses
(ii) Develop and encourage the spirit of religious tolerance among the masses.
(iii)Inculcate in the masses the spirit of nationalism.
(iv) Encourage the people to part with the old beliefs and superstitions.
(v) Make the youth aware of political, scientific developments which are
happening around.
The media is a powerful instrument of influencing the masses, and hence is
considered to be an influential mentor. But the media has to take care that while
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mentoring its wards; it should not distract them from their main objectives of
development. The role of the mentor is difficult as well as delicate.
Democracy is meaningless without a free, neutral and active media.109 So the media
carries with it a very huge responsibility in a democratic setup which it has to fulfil
very carefully without any bias toward anyone by bringing out the real facts before
the public.110
(d) Role of the media as a guardian of the society
The media is a guardian of public interest in a democracy. The people who are in
power tend to involve into corruption, as rightly pointed out by Lord Acton ‘Power
corrupts and absolute power corrupt absolutely’. The media can be free only if it dares
to differ with the Government if it strongly feels that Government has taken a wrong
stand which is to promote their selfish interest rather than to serve the people. Under
these circumstances the media, instead of just singing high praises of the government,
should unflinchingly oppose the arbitrary action of the Government.111
Publicity is the best antidote for the arbitrary rule. This fact was valued even in the
ancient societies in the 17th century. Many renowned philosophers have expressed that
publicity and openness is the best way to protect the community against the tyrannical
and arbitrary rule. The excessive use of the unwarranted or oppressive power can be
controlled by exposing it to the public. Montesquieu the famous French political
philosopher has opined that the abuse or misuse of power can be deterred by
publicity. It is inherent in human nature that a human being likes to hear only praises;
and does not like it when he is criticized for his actions. Not only this, but criticism
acts as a check on his wrong and corrupt actions. As far as the public officers are
concerned, expositions of their actions bring the public’s discontentment which acts
109 Zillmann D (2002) Exemplification Theory of Media Influence. In: Bryant J, Zillmann D (eds)
Media Effects: Advances in Theory and Research. 2'nd edition. Lawrence Erlbaum, Mahwah, New Jersey
110 Dr. Bharti Das, Importance of Independent Media in Democracy, Scholar’s Voice: A New Way of Thinking Vol. 2, No. 1, January-June 2011,43-49
111 Gunther R, Mughan A (eds) (2000) Democracy and the Media: A Comparative Perspective. Cambridge University Press
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as a check on their arbitrary actions. In the role of the publication of the government
or its officer’s errors112 the press plays an important role.
Now days the significance of the press has been widely acknowledged and in almost
all societies the press has been commonly referred to as the “Fourth Estate.” The press
and the media have become extremely important in the democratic set up. The media
provides the check and balance without which government cannot effectively
function.
The media acts as a guardian of the society as it protects the rights of the people.
Media through information and education makes the individual aware of his rights. In
the cases where the individual’s rights or liberties are infringed the media highlights
such cases and hence the individual is secured of his rights and liberties. Actually the
task of protecting and securing the individuals rights and liberties is done by the
Indian Judiciary. However in the cases where the individual’s right is infringed and
such infringement is projected by the media; this publication acts as a deterrent check
on the authorities who have attempted to infringe the right and thus it is stated that the
media guards the individual’s right. The judiciary acts as a guardian only in those
cases which come before the court. But in the case of media this limitation is not
applicable. On the other hand the media can operate sue motto and can expose the
infringement of a right or liberty of any individual in the society. It does not wait like
the courts for the individual to approach it for the publication of the infringement of
that right.
In the classic case of Nirbhaya, it was only because of the media’s efforts, that her
right to file a First Information Report was secured. When that unfortunate incidence
happened, and both the victims were thrown out of the bus, an attempt was made to
file First Information Report; however the police refused to file the report. However
when the media picked up the story and secured the support of the people not only 112 Stephen Holmes, “Liberal constraints on private power?” in Judith Lichtenberg (ed), Democracy
and the Mass Media,” Cambridge: Cambridge University Press, 1991. pp. 21-65.
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from Delhi, the police who refused to file the First Information Report, now filed the
same. This incidence and many others of such nature prove the fact that because of
the media’s vigilance it acts a guardian of the society. The role of the media to act as a
guardian of the individual’s right helps the society in attaining justice.
A vigilant media will analyse the government’s action, organize debates, gather the
opinion of the people, and communicate the suggestions of the people to the
government.
There is no doubt that the media has a very responsible role to play in a democratic
system.
3. Impact of the Media
No agency is as influential as the media in the present times. The influence of the
media is responsible for its dynamic growth in all its spectrums. The media has
become more powerful because of its potential to influence the masses on large scale.
One can see and experience the impact of the media in all walks of life. There is no
aspect of the community in which the media has not played a crucial role. Every
concept has got a positive as well as a negative side, and the media is no exception to
it. The impact of the media on the masses is twofold:
(a) The positive impact upon the society
(b) The negative impact upon the society
(a) The positive impact of the media upon the society.
(i) Makes the democracy more effective and meaningful
(ii) Promotes the implementation of the Doctrine of Rule of Law
(iii) Plays an active role to enforce the constitutional values
(iv) Helps to formulate and organize the public opinion
(v) Acts as an instrument of development of the state
(vi) Promotes to protect the environment
(vii) Promotes to provide aid in emergency situations
(viii) Acts as a source of entertainment
(ix) Promotes in a self development of individual
(x) Promotes social values and helps in the eradication of social evils
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(i) Makes the democracy more effective and meaningful
Democracy is the government of the people, by the people and for the people.
The first aspect is that, the media imparts information to the public at large
and based on this information; the people make appropriate choice of their
representatives. In this way the media is indirectly responsible for the people’s
choice of the elected representation.
The second aspect is that the media abridges the gap between the government
and the public. The media communicates the government’s policies, plans,
schemes, programs to the public. Simultaneously the media helps the
government to know the pulse of the society by communicating to it the
moods and reactions of the public. It is very correctly stated by Von
Savigny113, that the government which is sensitive and alert to the public’s
mood that is the pulse of the society is a very stable and efficient government.
The third aspect is that the media aids and assists the government in
implementing its policies. So also it helps the people to indirectly participate
in the governments functioning by expressing their opinion. The last aspect is
that, the press is the cornerstone of the democracy. It is generally said in a
light vein that the press makes or breaks the government. The press or the
media projects the electoral candidate in a good or bad light which plays a
significant role in influencing the people to make their appropriate choices.
(ii) Promotes the implementation of the Doctrine of Rule of Law
According to A.V Dicey, Rule of law means that the law is supreme and no
one is above the law. The nation shall be governed by the rule of law, and not
by any arbitrary force. The rule of law demands that every action of the
government or of any public authority has to be based upon the law. The lay
man is unable to know, whether the governments action is within the ambit of
legal powers or not. When the media informs the public of the arbitrary
actions of the government or any public officer, then only the people are aware
of such misuse of power. The media acts as a threat to the government as it
projects the abuse or misuse of power instantly without wasting any time. This 113 Dias R.M ; ;op.cit. p 44
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fear of projection by the media, of the misuse or abuse of power, acts as a
deterrent effect on the government. Many a times the government is afraid to
act in an arbitrary fashion because of the fear of the media who may expose it
in front of the public; and the consequences may be dangerous for the
government to survive in power.
Sometimes when the executive tries to shirk its responsibilities then the media
perceives the matter, forcing the executive, to act in accordance with the
law114.
(iii) Plays an active role to enforce the constitutional values
The Indian Constitution is the supreme law of the land. The media promotes
the values enshrined in the constitution such as nationalism, integrity of the
state, brotherhood, religious tolerance etc The prime function of the media is
to impart information; but while performing this function, the media also
imparts education, awareness, brotherhood and fraternity, which are embodied
in the Preamble and the Directive Policies of the state of the Indian
Constitution. Not only this but it also helps to protect and promote some basic
fundamental rights such as right to life, liberty and equality. When the state
tries to infringe any fundamental or constitutional rights, the media exposes
and projects such cases to the public at large. The government is afraid of such
negative publicity as it tarnishes its image in front of the public and tries to
immediately redress the grievance. To put it precisely one can say that the
media indirectly compels the government to act within the constitutional
framework.
(iv) Helps to formulate and organize the public opinion
In England public opinion plays a fundamental role in the governance of the
state. No English Government dares to take a step against the public opinion,
which prevails in the society. The public opinion of England is not only
dominant and strong, but is also very well organized and hence can be
conveniently communicated to the government.
In India before the liberalization policy of 1991, the public opinion was
114 The Nirbhaya case, Supra., p121.
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present but was not organized, and hence it could not be effectively
communicated to the government. But after 1991, the media was free from the
governmental control and helped in organizing the public opinion. The media
not only informs the masses, but also collects, gathers analyses and arranges
the public opinion, and communicates it to the government as well as to the
other sections of the society. Every aspect of public opinion, that is the counter
current of the public opinion as well as the dominant public opinion is
collected and informed by the media. The media organizes and communicates
the public opinion to the government; and it is the well known fact that the
public opinion plays a prominent role in the governance of the state.
(v) Acts as an instrument of development of the state
The media provides the information about the various developments in the
field of science and technology. Many a times this information regarding the
various aspects of science and technology acts as an impetus to the research
scholars to make inventions. By performing the prime duty of imparting the
information, the media gives an insight to the public regarding the scientific
agricultural and industrial development. By this information the remote
sections of the society gets the knowledge of the development and take the
benefit of the said developments; resulting in overall development of the state.
The media is responsible for the development of the society through imparting
the information to the public.
(vi) Promotes to protect the environment
As a result of the Stockholm Convention 1972, the whole world became aware
of the need to protect the environment. Mrs. Indira Gandhi, the then Prime
Minister of India, had represented India in the said International Convention.
In pursuance to the conventions many statutes were enacted to protect the
environment115. It is true that the statutes regarding the environment were
passed, but for its effective implementation, it was necessary that there should
be active participation of general public. This was possible because of the
media. The media gave coverage to many programs like planting of trees,
115 Shastri SC, Environmental Law (20155th ed.) p. 448
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saving water, saving fuel, construction and maintenance of toilets, and
movements like ‘Swacha Bharat’ which had a tremendous effect on the
people. As a result of these programs the environmental laws were
implemented effectively. The public at large started taking steps to protect the
environment because of the initiative taken by the media. The media has
contributed indirectly in protecting the environment, by campaigning to
protect the same.
(vii) Helps to provide aid in emergency situations
In the emergency situations like famines, floods or any other catastrophe, or in
case of a disaster or a calamity, the media has played a vital role in providing
aid and assistance, to the affected people. It is the welfare function of the state
to provide aid or assistance or help to the people affected by such a disaster or
a calamity. The media acts as an extended arm of the state in such situations
and provides the necessary relief with the help of the public. It provides the
aid to the victims, by informing to their relatives their whereabouts or other
details. It publicizes the organizations which come forward to help in such
situations. It also helps the affected people, by giving them helpline numbers.
It also gives the information regarding such catastrophe which enables the
people to take appropriate action.
(viii) Acts as a source of entertainment
Apart from imparting the information the media plays an important role, as
acting as a source of entertainment. Entertainment is one of the important
values of human life which adds spice to the mundane life. The traditional
sources of entertainment programs like those of bhajans, kirtans, bharoods
powada, etc have significantly reduced, and are replaced by the entertainment
modes of media. Some ancient modes of media like Theaters and lavani have
been rejuvenated by the media. The entertainment by media is more popular
and cherished by media.
(ix) Promotes in the self development of an individual
Another tremendous impact of the media is that it promotes self help to an
individual. Information regarding all the many fold facets of life such as,
education, culture, vocation, profession, religion, science, technology,
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development, research, cyber world, space communication, environment,
sports etc is provided by the media. Relying on the information an individual
can help himself to develop. The media not only gives the information to the
public but also guides them by continuously and regularly giving detailed
updates regarding developments and changes in all the spheres.
(x) Promotes social values and helps in the eradication of social evils
The impact of the programs conducted by the media promotes the social
values, and helps in the eradication of social evils
The media, somewhere in 90’ by advertisement tried to discourage the people
from taking dowry. Even a movie projecting the ill effects of dowry was
released.116 The taking and giving dowry has not been eradicated, but has been
reduced by the impact of the media’s measures to project it as the social evil.
The media is also trying to curb the vices by repeatedly pointing out the
serious effects on health of an individual, through their advertisements.
The media also undertook the beti bachao and beti padhao andolan, by which
the media tried to convince the people that a girl is no less than a boy, and
should not only be aborted, but should be brought up and educated equivalent
to a boy. So also the parents should allow her to pursue career. The laws to
these effects were there no doubt, but it needed the change of perception,
which was brought to a great extent by the media.
The media is also responsible to reduce the child labour and untouchability by
conducting various programs, and articles published in the newspapers.
The impact of media, these days is really very significant. It is a well accepted fact
that the media is indispensible in any democratic nation, and it becomes more
significant in a country like India where there is a significant number of citizens who
are illiterate, as the media can play crucial role in not only informing citizens but 116 Movie title ‘Ye Aag Kab Bhujegi’ released in 1991
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making them able to think independently and help and them to make correct choices
which may be beneficial for them in long run.
A responsible media keeps the nation united and ensure its way for success. It also
fosters the sense of brotherhood among the citizens. In addition to this the media tries
to breed the spirit of religious tolerance among the citizens.
The media always acts as a guide or a mentor. Just as mentor does not take the
decisions but enables his ward or pupil correct decision; in the same way the media
guides the society to take its own decision.
(b) The negative impact of the media upon the society
The researcher in this topic wants to focus on the short coming of the media.
While giving the coverage to any news sometimes excessive coverage or hype of
certain sensitive news has led to the communal riots, on certain occasions. As certain
uneducated people are more prone to provocations rather than the rational thinkers;
such people get easily provoked and act in a rash or violent manner because of the
news projected by the media. Repeated reception of the same news, especially
sensational news breeds apathy and insensitivity. For instance in the famous Dhanajoy
Chatterjee case, the overloaded hype of hanging led to the death of quite a few
children who went to imitate the hanging procedure which was repeatedly shown on
the main television channels. There are lots of instances of such negative impacts.
Media should take utmost care in airing such sensational news, as it may lead, to
some or unwanted tragedies.
Commercialization and liberalization has created a cutthroat competition in media, In
an attempt to outdo each other print media has often gone one step further and
published articles, cover stories, etc. on sex which is against the standards of public
decency and morality. Further such cover stories promote sex crimes in the society. A
few stalwarts in the field of the media have opined that the print media is publishing
such articles and cover stories on sex to reduce the viewership of the television
channels which have gained profound popularity in the recent times. This is in bad
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taste of unhealthy competition and also reflects upon the cheap form of journalism.
The liberalization policy of 1991 had a two way impact on the media. On the one
hand it gave the independence to the media from the government control; while on the
other hand encouraged unhealthy competition among the various channels of the
media. The effect of the unhealthy competition among the various channels of the
media made the media more like the the business centre rather than an agency
providing service. This is a sign of real danger for the democratic principles as the
media performs the function on an economic consideration.
Another aspect of serious concern is this that the private channels of the media are
continuously engaged in combating with one another for Television Rating Points
(TRP). As a result of which the channels instead of imparting objective and fair news,
they mould, twist and turn the news to make it more spicy and appealing to the public.
So now the thrust of the channels is to project such news which is catching and
appealing, rather than the real and factual news. The consequences of this are very
grave because the main objective and the focus of the media is totally grounded and
the financial considerations are allowed to play a major role in the function of
imparting information.
As stated above the role of the media is like a mentor who helps or assists a person to
take an independent decision; hence the media should educate the people through
information and enable them to take their own decisions. However today, the media
psyches the people such a way that the people tend to take a decision which suits the
interest of media rather than the interest of people.
Every coin has two sides; similarly the media also is capable of projecting the positive
and the negative impact upon the society. The positive impact of the media is to a
considerable extent; however the negative impact is of such a nature that it results in
undoing all the positive achievements.
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4. Media and right to fair trial
The media trial means where media itself acts as judiciary and tries to pose the
accused guilty or innocent before any judicial pronouncement is made. This is only
possible where the media is active and free, like that of India. It should be
remembered, that the media should be active and not cause interference in the
administration of justice. There is a thin line between activism and interference; the
media should not interfere with the matter which is being adjudicated by the court of
law. Media can report the proceedings of the court, unless directly prohibited by court
in public interest.
But today it has become a fashion for the media to conduct media trial and some
times, the media trial is conducted for getting TRP's or cheap publicity. Very often the
media makes a personal attack on the accused or tries to prejudice the trial. The
researcher has dealt with this problem in the following pages.
Before one can proceed to the instances of media trial it is imperative to deal with
some fundamental principles of criminal jurisprudence117.
The cardinal principles of criminal jurisprudence on which the criminal culpability is
based upon are:
(i) Presumption of innocence, unless proven guilty by a competent court.
According to this principle every person is presumed by law to be innocent,
unless and until, he is proved guilty by a competent authority of a court. No
agency is allowed to put the stigma of “guilty of crime” on any person before
the verdict of the court.
The Supreme Court has stated in state of U.P. v. Naresh and Ors118, no person
shall be punished or sentenced unless and until his guilt is proved beyond the
117 Kenny; Outlines of Criminal Law., 118 (2004) 4 SCC 158)
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reasonable doubt as the principle of presumption of innocence prevails. In
Kali Ram v. State of H.P. 119 the Supreme Court has stated the grave
consequences of convicting an innocent person. It has further stated that it
would be extremely unjust to acquit a person who has committed an offence,
and the confidence in the judiciary would be shaken. But it would be far more
dangerous if an innocent person is convicted. As is commonly said let hundred
guilty men escape gallows, but one innocent person should not be hanged.
(ii) The parameter for proving the guilt is “beyond reasonable doubt”.
The burden of proof lies upon the prosecution to prove the person guilty. The
scales of this burden are very heavy as the prosecution has to prove the guilt,
beyond reasonable doubt. It means that the person is not guilty just because a
doubt prevails in relation of his committing offence. But it is otherwise, that it
is most certain that is beyond reasonable doubt that the accused and only the
accused has committed the offence.
When media virtually conducts a trial, these golden principles are completely
sidelined and ignored.
(a) Position of Media trial in United State of America
In United States of America the right to free press springs from the first amendment
which states that the Congress shall make no law in respect of an establishment of
religion, or prohibiting the free exercise thereof or abridging the freedom of speech,
or of the press'120, This amendment has given a free hand to the press. By virtue of
this amendment, the hands of the government are tied to a great extent. It is because
of this amendment that the press gets a considerable freedom to publish a matter
which is subjudice. Such a publication in respect of a matter which is subjudice, poses
a serious threat to the right of fair trial of the accused.
119 (2001) 4 SCC 324) 120 www.law.cornell.edu/constitution.-first-amendment
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The American Constitution confers freedom on the press even to publicize the matter
that is pending in court of law121. Not only this, but the government is refrained from
penalizing the newspapers which publish such matter. The impact of this freedom was
seen in the popular case Sheppard v Maxwells122. In this case wife of a doctor was
murdered. The doctor was charged with the offence of murder. The prosecution did
not have adequate and direct evidences. When the accused was on bail, The Cleveland
press, one of the largest newspapers, of Cleveland, in its headlines stated, ‘bring him
in’. It appeared that whether the accused was guilty or innocent, was not the
consideration of the press, they just wanted the accused behind the bars. It was not
only the Cleveland Press but the entire media was behind the accused. This case is
popularly termed as a ‘Roman Holiday’ for the press. According to Paul Holmes, the
Sheppard murder trial was “the gaudiest, most publicized, and the most controversial
murder trial in the United States in modern times.” Sheppard was convicted. The
Supreme Court on 6th June 1966 stated that, Sheppard was denied of a fair trial which
was his indispensible right.
This trial was one of the earliest trials that was followed by the American citizens, not
only through the newspapers but also television set which were rapidly evolving at
that time. The Sheppard media trial poses a number of questions. Is it ethical for the
media to conduct a media trial just to give the public the juicy entertainment of the
analysis of the case; which hampers the merits of the case? Or should the media trial
be curtailed, and allow the judiciary to function without any interference from the
media, so that the justice can be met with. However these questions have remained
unanswered.
To make the matters worse during the Sheppard’s case the Cleveland press also
brought the pool of jurors into spotlight by naming all of them and writing about the
fashion of female jurors. It is clearly evident that in this case the American media has
made a gross misuse of the independence which was conferred by the two
amendments.
121 The Fourteenth Amendment. Id. Amend XIV; 122 384 U.S. 333, 349-50 (1966)
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The only restrictions the press earlier had in United States was that the doctrine of
clear and present danger. This doctrine was evolved by the Supreme Court in
Schenck v. United States123 Charles Schenck, a socialist, distributed the flyers to
servicemen. Those flyers stated that ‘the war is for the capitalist interest and a
violation of thirteenth amendment of the constitution, which is against slavery’. It
further appealed to the servicemen not participate in the war. The United States
government charged him with the Espionage Act which was recently enacted by the
state. Charles took the defense of the 1st Amendment which relates to the freedom to
press. The Supreme Court of United States, while convicting Charles, evolved the
doctrine of ‘Clear and Present Danger’. The right of freedom of press was limited by
the doctrine of ‘Clear and Present Danger’
Later in the year 1969 the new "imminent lawless action" test in the Brandenburg v.
Ohio124 was derived. The leader of a Ku Klux Klan group was convicted for the
crimes of sabotage, violence and using illegal means to promote terrorism. Under the
garb of bringing about the industrial or political reforms the appellant was engaged in
holding unlawful assemblies and was promoting Criminal Syndicalism. An appeal
was filed in the Supreme Court; the Supreme Court in this case parted with the
doctrine of ‘Clear and Present Danger’ and evolved the doctrine of "imminent lawless
action", and acquitted the accused.
The doctrine of "imminent lawless action" is evolved by the Supreme Court of United
States to draw the limits of free speech. This doctrine gives more scope to the right of
free speech. It can only be restricted on two grounds
(i) Speech that invites imminent lawless action
(ii) Speech that is likely to produce such action.
In nutshell the doctrine of "imminent lawless action" is only attracted if the speech is
an immediate threat to any lawless action. For example the speech “all the politicians
to be put to death” may not be punishable as it does not cause any immediate or
123 249 U.S. 47 (1919) 124 395 U.S. 444 (1969)
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imminent danger and hence is protected by the free speech. However the speech
“here is Mr. X, let’s kill him” will not be protected by free speech, because it is
causing immediate or imminent danger of lawless activity.
From the above discussions it is clear that the doctrine of "imminent lawless action" is
granting more freedom to speech and expression than the doctrine of ‘Clear and
Present Danger’.
It will not be an exaggeration to say that in United States free press is given more
significance than fair trial. Hence in United States of America the scope for media
trial is wide.
(b) Position of the media trial in United Kingdom
In United Kingdom the position of free speech is quite opposite as compared to the
United States. In United Kingdom the right of fair trial of an accused, is given more
significance and value then the right to speech and expression.
In United Kingdom the right to speech and expression given to its citizen is a negative
right. In 1998 England adopted the European Convention. Article 10 of the
Convention gives them the right of free speech. The right to speech is subject to
limitation with threatening, abusive or insulting words or behaviour intending or
likely to cause harassment, alarm or distress or cause a breach of the peace (which has
been used to prohibit racist speech targeted at individuals)
The courts do recognize the newspaper’s rights to publish accurate reports of public
court proceedings, however they admonish that the newspapers have no right to
publish comments or anything which does not actually occur125.
125 Contempt of Court Actp 1981. c. 46. & 4 (U,K.) (outlining acceptable boundaries of contemporary reports of prciceeilk|gsl; Law of Libel Amendment Act, 1888, 51 & 52 Vict, c. 64 & 3 (Eng. & Wale'sl (amending and repealilzg parts of Newspaper Libel and Registration Actv 188 l 44 & 45 Vict. c. 60). Accord magistrates courts Act Olorthena Ireland) 196 4, c. 21;
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The judiciary has stated in R. v. Evening Standards126 that the newspapers cannot
publish any information related to the accused or the case even if the case is not filed
in the courts of law because the public may give any information related to the case or
the accused and hence the rights of the parties may be affected. The press is also
prohibited from publishing the results of investigations of matters related to the
official scrutiny.127
However this judgment may cause hurdles in the detection of crime and also in the
procedure of investigation and inquiry related to the case. Further the media will also
not be able to hold interviews of the people who are involved in the case.
In the United Kingdom there are various legislatures which limit the freedom of press,
and hence the press cannot interfere with the fair trial. The Criminal Justice Act 1925,
by section 41 prohibits any person to take or attempt to take any photograph of a
judge or a witness. Also making a sketch or a portrait is prohibited. Section 12 of the
Administration of Justice Act 1960 prohibits the publishing of the proceedings which
are conducted under the Children Act 1989.
The Contempt of Court Act 1981 puts the following restriction on media.
(i) According to section 9, the media is not allowed to use any tape recorders in
the courts, and neither is allowed to record by any other means.
(ii) By the virtue of section 10, a limited protection is granted to a person who
does not disclose the source of information of any
(iii) Section 18 of the Criminal Procedure and Investigations Act 1996 prohibits a
person from knowingly using or disclosing an object or information which is
prohibited by the statute128 . The guilty person is punished with fine or
imprisonment or both.
In England the press is not allowed to publish or interfere in any way with the judicial
126 ( 19241 40 T. L.R. 833 (K.B.) (U.K.) 127 Id. 128 http://www.cps.gov.uk/legal/a_ to_ c/contempt _of_ court/
136
process or justice, as it may hamper the fairness and the objectivity of the court
proceedings. In the criminal cases once the arrest of the accused is made or a warrant
is issued from that time onwards the press is prohibited from publishing any matter
which will prejudice the case. In Scotland once the Simmons (complaint) is made the
press is prohibited from publishing any matter related to the complaint.
It is the discretion of the court to allow or not to allow the media to report the trials
which are conducted in the crowns or magistrates courts.
Therefore one can say that in England, the press and media are subjected stringent
rules as far as the reporting of the trial is concerned. So automatically the instances of
media trial are reduced considerably.
(c) Position of media trial in India
In India the freedom of speech and expression includes the freedom of press. As it has
been stated before, the freedom of press is a fundamental right, which is
circumscribed by certain limitations. The authority of the media to conduct a trial falls
within the scope of freedom of speech and expression. So in India the concept of
media trial is prevalent and is gaining importance and popularity. The concept of
media trial in India is not as broad as the concept existing in the United State of
America; neither it is as restrictive as the concept of media trial in England. So the
scope of media trial in India lies in between the scope prevailing in the United State of
America and in England. The concept of media trial in India is old and was prevalent
even before the year, 1961 because in the same year the Supreme Court has
commented on the concept of media trial in Saibal Kumar v. B.K. Sen129. The court
had very clearly said that it would amount to mischief if a newspaper as to conduct an
independent investigation of a crime. The consequences of such a media trial would
be grave and affect the whole system of justice as it would tend to cause a prejudice to
the parties involved in the case. The court has further stated that the media trial would
cause an interference or hindrance in the course of justice.
129 1961 AIR 633
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The point to be noted here is that the reflections of the court regarding the media trial
point out the fact that the concept of media trial prevailed even then. In those days the
media trial was conducted mainly through press, as the other channels of media such
as television and other electronic modes were not in vogue for the domestic use. The
media trial prevailed in a vague and not in a very systematic manner.
The media trial has become suddenly very popular and is often resorted to in the
twenty first century.
One thing here has to be noted that the media trial should not be confused with the
media trial. The media activism means where the media points out the injustice in the
society and ensures that appropriate proceedings have been initiated. The following
cases will ensure that how media has played a crucial role in dispensing the Justice.
These cases also show that, had the media been inactive then, how the perpetrators of
crime would had got scot free.
Nitish Katara murder case
This is also a case where the role of the media is significant in bringing the accused to
the books. Nitish Katara, a business executive was murdered 17th February 2002, by a
son of the criminal turned politician. The only fault of the victim was that he was in
the love with the daughter of the criminal turned politician who was studying in same
class. Both Nitish and the girl were pursuing graduation from Institute of
Management of Gaziyabad. It is here they fell in love and wanted to marry. This was
not approved by the Yadav family.
Nitish Katara was a 25-year-old Indian business executive in Delhi, who was
murdered in the early hours of 17 February 2002, by Vikas Yadav, the son of
influential criminal-politician D. P. Yadav. Nitish had recently graduated from the
Institute of Management Technology, Ghaziabad, where, he had fallen in love with
his classmate, Bharti Yadav, sister of Vikas. The trial court held that Nitish's murder
was an honour killing because the family did not approve their relationship. Vikas and
Vishal Yadav were later found guilty by the trial Court and awarded life sentence on
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30 May 2008. On April 2, 2014, Delhi High Court upheld the Trial Court verdict of
life imprisonment to the accused. On Feb 6 2015, Delhi High Court on re-appeal on
Death Sentence, extended sentence as 25 years rigorous Life Imprisonment without
remittance. On Sep 9 2015, The Supreme Court of India rejected a plea by Neelam
Katara seeking enhancement of sentence to death for Vishal and Vikas Yadav
The Yadav family never approved of the relationship between the two, and Katara
received threats several times. However, he was an idealist, and believed in "standing
up to injustice”. On the night of 17 February 2002, the couple attended a common
friend's wedding, where Yadavs's brother, Vikas, and a cousin were present as well.
From there, Katara was taken for a drive by Yadav's brother Vikas Yadav and Vishal
Yadav, and never returned. Three days later, Katara's body was found beside the
highway; he had been battered to death with a hammer, diesel poured on him, and set
aflame. Dr T D Dogra collected the blood samples of parents for DNA profiling to
establish the identity of deceased Nithish Katara at AIIMS New Delhi.
On 30 May 2008 New Delhi fast track court sentenced Vikas and Vishal Yadav to life
sentences for the kidnap and murder of Nitish Katara. Both were also fined
Rs.160,000 each.
On April 2, 2014, Delhi High Court upheld the Trial Court verdict sentencing Life
Imprisonment to Vikas Yadav, Vishal Yadav and the contract killer Sukhdev
Pehalwan. An appeal by Katara’s mother and prosecution seeking death sentence to
the convicts is still pending before the High Court which will be heard on April 25,
2014.The Delhi High Court on Friday 06th Feb 2015 sentenced Vikas Yadav and his
cousin Vishal Yadav to 30 years in prison for the murder of Nitish Katara, a friend of
Vikas Yadav's sister.
On August 18, 2015, Supreme Court of India upheld the High Court verdict On 9
October, 2015 Supreme Court rejected the appeal filed by the sister of Nitish Katara
for death penalty of the Yadav brothers. Hon'ble Supreme Court of India upheld the
conviction for 25 years.
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Sexual assault case against Tejpal
The sexual assault allegations against Tejpal in November 2013 received intense
public attention and media scrutiny, because Tehelka had previously been involved in
highlighting the issue of sexual violence in India, including in a special issue on the
topic in February 2013. There were protests against Tejpal by supporters of the BJP
and its allies. Shoma Chaudhury's handling of this case was also criticised, for
possibly underplaying the issue. The details of ownership, board of directors and
financials further came under scrutiny. From the Registrar of Companies in 2012,
Tehelka was owned by Anant Media Private Limited whose major shareholder was
from a company affiliated to Alchemist group, a business conglomerate which was
investigated by the Serious Fraud Investigation Office. The industrialist and
Trinamool Congress member KD Singh also owned a part of this company.
"Sting journalism"
After "Operation West End", Tehelka's "sting journalism" influenced the country's
media.[47] In five years, Indian news channels began to regularly feature sting
operations. Tejpal called it the "greatest tool of journalistic investigation and
exposure" and that it was for public interest.
Authorities and politicians demanded a sort of legislation over such "stings".
Journalists against this, questioned the difference between this type of reporting and
entrapment, between public interest and voyeurism. The Indian Supreme Court
expressed its concern over the cases of freelance reporters selling their sting reports,
questioning whether their intent was for money or public interest. Bahal said, "There's
no thriving freelance sting journalism industry in India as the judges seem to think.
Stings are serious business and not everybody has the guts to do it or telecast it."[47]
Cases of sting operations where fake evidence were given increased the court's
criticism. Tejpal said, "there may be bad, motivated and indifferent stings - but that is
no different from the rest of journalism".
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Jessica Lal case
Jessica Lal (5 January 1965 – 30 April 1999) was a model in New Delhi, who was
working as a celebrity barmaid at a crowded socialite party when she was shot dead at
around 2 am on 30 April 1999. Dozens of witnesses pointed to Siddharth Vashisht,
also known as Manu Sharma, the son of Venod Sharma, a wealthy and influential
Congress-nominated Member of Parliament from Haryana, as the murderer. In the
ensuing trial, Manu Sharma and a number of others were acquitted on 21 February
2006.
Following intense media and public pressure, the prosecution appealed and the Delhi
High Court conducted proceedings on a fast track with daily hearings conducted over
25 days. The trial court judgment was overturned, and Manu Sharma was found guilty
of having murdered Lal. He was sentenced to life imprisonment on 20 December
2006.
On 29 April 1999, Lal was one of several models working at an unlicensed bar at a
party in the Tamarind Court restaurant, which was within the Qutub Colonnade, a
refurbished palace overlooking the Qutub Minar in Mehrauli. By midnight the bar had
run out of liquor and it would, in any event, have ceased sales at 12.30 am. After
midnight, Manu Sharma walked in with his friends and demanded to be served liquor.
Lal refused to serve Manu Sharma, who was with a group of three friends. He was
ready to offer Jessica � 1000 for it. Sharma then produced a 22 calibre pistol and fired
it twice: the first bullet hit the ceiling which was to serve as a warning to Jessica not
to refuse liquor, but when Jessica refused again, Sharma fired again and the second hit
Jessica in the head and killed her.
Charge sheets were filed with the court on 3 August 1999.
The trial court has acquitted them because the Delhi police failed to sustain the
grounds on which they had built up their case. The police failed to recover the weapon
which was used to fire at Jessica Lal as well as prove their theory that the two
cartridges, emptied shells of which were recovered from the spot, were fired from one
weapon.
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The police petitioned the High Court for a review of the case and on 22 March 2006.
On 15 December 2006, the High Court ruled that Sharma was guilty based on existing
evidence, and also criticised the trial judge, S. L. Bhayana.
On 19 April 2010, the Supreme Court of India approved the sentences.
(d) Priyadarshini Mattoo case
Priyadarshini Mattoo case is another classic example where the media refused to let
the case go out of the minds of public thereby ensuring the conviction of the
wrongdoers, and prohibiting them to escape from the clutches of the laws, using their
high position in the society.
Priyadarshini Mattoo was a 25-year-old law student was found raped and murdered at
her house in New Delhi on January 23, 1996. Santosh Kumar Singh, the son of a
Police Inspector-General, was the prime accused in this case. He fell in love with the
victim and started to chase her, despite the fact that she clearly said no to his
proposals.
Upset by her refusal on January 23, 1996 he raped and murdered the victim.
The trial court on January 23, 1996, acquitted the accused. The media criticized the
decision strongly and created the pressure on the administration. The appeal was
made to High Court and the High court setting aside the conviction of the accused and
awarded death sentence of the accused. However, the Supreme Court on October 6,
2010, reduced the punishment to life imprisonment.
This case pointed out the power of the media. The accused had got benefit of doubt
and was acquitted. Had the media not pursued the case then there would have been no
conviction.
On October 17, 2006, the Delhi High Court found Santosh Kumar Singh guilty on
both counts of rape and murder and on October 30 of the same year sentenced him to
death. On October 6, 2010, the Supreme Court of India commuted the death sentence
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to life imprisonment. Santosh Kumar Singh, the son of a Police Inspector-General,
had earlier been acquitted by a trial court in 1999, and the High Court decision was
widely perceived in India as a landmark reversal and a measure of the force of media
pressure in a democratic setup. This decision went in favor because the facts were not
presented correctly in the lower court. The intense media spotlight also led to an
accelerated trial, unprecedented in the tangled Indian court system.
Priyadarshini was in the third-year of her law program, when she was found strangled
in her uncle’s residence. She had been raped, struck 14 times with a motorcycle
helmet, and finally strangled with a wire. Santosh Kumar Singh, her senior in college,
had been stalking and harassing her for several years, and was the immediate suspect.
But Santosh came from an influential family - his father J.P. Singh was then Inspector
General of Police in the Indian Union Territory of Puducherry
The Additional Sessions Judge G.P. Thareja delivered the ironical and widely
criticized judgment in the trial court proceedings in 1999,which said of Santosh, that
though the Court knew that "he is the man who committed the crime," he was forced
to acquit him, giving him the benefit of doubt.
Following a public outcry, the CBI then appealed the district court's verdict in Delhi
High Court on February 29, 2000.
On October 17, 2006, Santosh Singh, was found guilty under Indian Penal Code
sections 302 (murder) and 376 (rape).
As recommended by the Central Bureau of Investigation the death penalty was
awarded to Santosh Singh on October 30, 2006
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In October 2010, the Supreme Court upheld the conviction of Santosh Kumar Singh
but reduced the death sentence to life imprisonment Priyadarshini's father expressed
disappointment with the CBI for failing to appeal against this decision.
(e) The Ruchika Girhotra Case
The Ruchika Girhotra Case is about the of 14-year-oldgirl who was molested by
Inspector General of Police Mr. Shambu (S.P.S. Rathore) in 1990 in Haryana, India.
When Rucika opposed such molestation, and lodged a complaint, Mr. Shambu who
was holding a big post in the police force itself, systematically harassed the victim,
her family, and her friends. The girl went in such a trauma that the girl committed
suicide. The case prolonged for 19 years with 40 adjournments, and more than 400
hearings. On 22 December 2009, after 19 years, the court finally pronounced Rathore
guilty under Section 354 IPC (molestation) and sentenced him to six months
imprisonment and a fine of Rs 1,000. Mr. Shambhu appealed against his conviction.
Chandigarh District Court not only rejected his appeal on 25th May, but also increased
the sentence one and a half years of rigorous imprisonment, On 11 November 2010,
the Supreme Court granted bail to S P S Rathore on the condition that he remains in
Chandigarh.
This case had tremendous impact as the case was highlighted by the media. It caused
a tremendous sense of anger among the general public.
The importance and significance of the press has been very well stated by the first
Prime Minister of India, Pandit Jawaharlal Nehru, who has opined that he would
prefer a free and independent press inclusive of all its dangers, to that of a regulated
or restricted press. He was aware of the dangers involved in free and independent
press, he still preferred that to a press which was restricted. He has expressed this
because he was aware of the important role of the media. The main tool of media is
reporting. Through reporting media can bring various issues to the notice of people
which would otherwise go unnoticed. These issues of public importance make people
aware of their rights and duties. A media which tries to make people aware by
reporting is called as an active media. Active media is indispensible in a democracy;
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but an interfering media may cause the system of legal justice to collapse. This is
because the media itself pronounces the accused to be guilty or is declared even
before a competitive court does so. The media does this only to make the news
sensational, thereby increasing its saleability. The media trial is held mainly because
of the publicity, and the media forgets that its job is to only inform and not to
adjudicate. The constitution of India has vested every institution with specific and
defined functions. The function of adjudication is vested in the judiciary and the
function of inquiry and investigation is vested in the executive. The media along with
its own function of informing grabs the adjudicatory as well as the function of
investigation while conducting media trial.
The media fails to understand that it is the job of the judiciary to adjudicate the matter
by appreciating the legal aspects of it. The media neither has the excellence nor the
competence which the judiciary has. It is also not possible that the media has access to
each and every piece of evidence, which is presented before the judge. The media
does not even bother about the massive injustice it is inflicting upon the accused,
when it repeatedly point him as guilty without giving him any fair opportunity to
defend himself This creates enormous pressure on judiciary and also tarnishes the
image of the accused. When the media continuously harps upon the guilt or the
innocence of the person, it is possible that the mind of the judge is affected. He may
be deprived of a clear, reasonable, rational and legal thinking. According to the
Realist approach130, the judicial thinking is affected by the prevalent social facts; so
the facts that the media hyping the guilt or the innocence of a person will no doubt
influence the judicial thinking. Even an eminent jurist like Cardozo131 has expressed
that the judicial process not only involves the attitude, and the thinking of the judge
but also the factors which influence his thinking which virtually affects the decision
of the case. Not only may this but because of the media trial which sways the moods
of the public in favour or against the accused, the judge, himself may feel under
tremendous pressure. For example Salman Khan’s case of rash and negligent driving.
The media in Salman’s case kept on projecting that he was guilty and had to be
punished; and if he was acquitted, it would be only because he was a cine star. The
130 Friedmman; Legal theory 131 Cardozo;The Judicial Process
145
judiciary underwent a tremendous pressure while delivering Salman’s verdict. In any
democratic setup the media and judiciary always play a complementary role where
media explores and reveals the achievements and mistakes of an individual while
judiciary takes care of legal problems of individual. The motive of the media is to
discover the truth and to uphold the democratic spirits. That is why media is called as
watch dog of society while the judiciary is called as a dispenser of justice.
There is no doubt that the media has the right to report any proceedings which is
subjudice. However there is an implied condition that the media shall restrict itself to
mere reporting of what has transpired without trying to form any opinion. This is so
because the role of the judiciary is to adjudicate without having bias. The role of the
media is to report what has happened.
A fair trial means that an accused is brought before an impartial judge who does not
have any interest or bias. The judge shall then appreciate the evidence and either
pronounces the accused guilty or innocent. However in the case of media trial, with
media constantly harping upon the guilt of the accused, may affect the minds of the
judges in two ways;
(i) Either the judge starts believing the guilt of the accused, before the trial has
commenced in the court of law, the result of which is, the judge may not
appreciate the evidence fairly, thereby causing prejudice to the accused during
trial.
(ii) Or there is a strong possibility that the judge to save his reputation may give
the decision against the accused from the fear of the wrath of the public.
Public is highly influenced by media, and if the public is so influenced by the
media, then the judge may dare not go against the public opinion, who may
accuse him of being corrupt.
Under both circumstances it is a clear denial of a fair trial to the accused.
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Another very far fetching but grave impact of the media trial is that if the media has
projected an accused guilty and subsequently a competent court after weighing and
balancing all the evidences for and against the accused has declared the accused
innocent and has thereby acquitted him; he may have lost his image and status in the
society, because the media has declared him to be guilty. When the media declares a
person to be guilty the public naturally forms an opinion against him; and the public
will never say that the media is wrong. Believing the media the public will form an
opinion against the person and believe him to be guilty and may not accept him
socially. This person who has been declared by the media to be guilty faces a lot of
problem to rebuild his image and status of the society. Further to worsen the
consequences, the public may have the apprehension that the person who is declared
by the media guilty was acquitted by the judiciary on some extraneous
consideration; because of the society may start distrusting the judiciary and the
whole system of justice will start crumbling.
The reasons for the media trial to prevail and become so popular are identified as
below
(i) The race of Television Rating Points (TRP)
This is the main factor responsible for the significant increase in the media trial. To
increase the Television Rating Points, by attracting viewers, the media feels itself
under compulsion to promote only that news such as media trial which is appealing to
the viewers. The media is over enthusiastic and hypes the media trial making them
popular. Every channel wants to show the media trial first on its channel to get
popularity.
(i) Media trial, the want of the public.
The judicial process of justice is very cumbersome, lengthy and complicated;
for a public to know and follow to a particular case. Hence it is very difficult
for public to know the happenings of the case, and sometimes even the
verdict of the case is not known. In contrast to this, by the media trial the
public gets access to the information related to the case and hence the media
trial becomes the favourite programs of the public. In the sensational cases
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the public wants to know the facts and the issues involved in the case; and
this is done very efficiently in the media trial. The public is not always well
versed with the intricate legal issues, and is happy to know only what is
projected by the media. For the sake to get information about a particular
case, media trial is in demand of the public; irrespective of the fact whether
the projected information is true or false.
(ii) The image of the media.
The whole world knows that media plays an important role in the
preservation and promotion of democracy. It is also known that the media
performs an important function of imparting fair, objective, and true
information to the public. This image has been acquired by the media over a
period of time and the public believes in the same image of the media. Hence
whatever has been projected by the media in media trial; the public believes
the trial to be correct and in consonance with justice. Nobody questions the
intentions or the objects of the media of projecting the information and hence
whatever is shown in the media trial is chewed and digested by the public.
(iii) Lacunas in the present legal system
The media trial survives and thrives because of some lacunas in the present
legal system. The court procedure is so lengthy and complicated, that
sometimes it takes years to dispose off a case. Many times it happens that the
case is followed by the public in its initial stages, and eventually the public
loses interest in the same case, as it drags on for years. In such cases the
public feels that the justice is denied because the justice has been delayed.
The sense of justice is present in the core of every human being and hence
everybody wants justice to be done. In the cases of media trial the media not
only projects the case in an interesting manner, but also apparently shows
that justice has been done by declaring a person innocent or guilty. By
declaring the person guilty or innocent by the media, the media tries to
imprint upon the public, by a make way belief that justice is appeared to be
done. When the villain in the movie is caught and punished, the public is
satisfied and happy; in the similar fashion, when the media pronounces a
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person guilty, or declares him to be innocent, the public is satisfied and
happy irrespective of any legal issues.
It is not only because of the media’s personal interest and gain that the media trial
has become popular, but it is also the demand of the public. In 2006, the Law
Commission in its 200th report has clearly stated that the consequences of media
trial, not only affects the system of Criminal Justice, but also affects the rights of the
accused, and damages his images in the society.
It is humbly submitted that the media and the judiciary should play a supportive role
to each other. The media should bring out the wrong happenings and ensure that the
prosecution against such wrong is commenced. However, once the prosecution
commences, the media should limit itself to mere reporting; the researcher would
like to state that the media should indulge into media activism. Media activism
means, the media projects the irregularities or illegal procedural activities which are
indulged by the court officials, thereby resulting into injustice. By media activism,
the media highlights such irregularities and ensures justice. However by media trial
the media exerts its influence and interferes with the judicial process thereby
disrupting the balance of justice.
Conclusion
Democracy cannot prevail without either media or judiciary, as both organs are
indispensible for proper functioning. The judiciary should ensure that all the legal
rights of the accused or convict should be protected. Our judiciary ensured this
recently when it heard Kasab’s plea for mercy even in the night to ensure that any of
his right is not prejudiced.
The media should also take the inspiration from judiciary’s sense of duty and
implement the following aspects in criminal trials to avoid any prejudice to any of
the parties involved in the case
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(i) The media should report the facts as they exists, without colouring or
twisting or turning them.
(ii) It should confine to reporting of the facts only and should not project any
opinion regarding the facts.
(iii) It should not to try to create sensation by showing the concerned clips
repeatedly.
(iv) It should not to make any imputation which may in any way tarnish the
image of the judiciary.
(v) It should ensure that while reporting the media is not violating any of the
right of fair trial of the accused.
If the media strictly adheres to the above guidelines, then the media will play a
pivotal role in enforcing the democracy in the true sense.
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Chapter –V
Issues and challenges of media
1. Introduction
2. Responsibility of the media in a democratic society.
(a) Indispensable postulate of the society Fourth Estate of the Sate.
(b) Media –watchdog of the society.
(c) Media a mirror which reflects the realities.
(d) Diverse information made easily available.
(e) Deterrent effect upon the corrupt or unethical tendencies.
3. Theories of media influence
(a) Limited – Effects Theory
(b) Class-Dominant Theory
(c) Culturalist Theory
4. Common challenges before the media
(a) Paid news
(b) Cross media holdings
(c) Glorification of crimes
(d) Neglecting important issues
5. Challenges before the print media
(a) Limited reach because of low literacy rate.
(b) Aliteracy
(c) Stale news
(d) Costs involved in production and circulation.
6. Social media
(a) Development of social media
(b) Legal implications of social media
(c) Social media vis a vis right to privacy
(d) Social media as a tool of harassment
7. Conclusion
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(1) Introduction
As it has been seen earlier the media plays not only a very pivotal role, but
enjoys tremendous influential powers132, as a result of which it enjoys wide
liberties. Today very few other agencies enjoy wide powers and liberties as
compared to that of media. However with the enjoyment of those wide powers,
the media has to shoulder heavy responsibilities. The task of the media becomes
tougher to discharge these heavy responsibilities as the media is in a whirlpool
of challenges. The forth coming pages deals with the issues and the challenges
posed before the media.
(2) Responsibility of the media in a democratic society
The media is bridled with the task of shouldering a very heavy, important and crucial
duty in the present times. This is because of the three facets of human public life
which are – (i) to know, (ii) to publicise, and (iii) to expose, plays a vital role in the
societal life.
(i) To know means to get information about various aspects. It is the media
which imparts the information to the public, which helps the public in
knowing and becoming aware of many issues and aspects prevalent in
the society. This is the very reason that the media is the instrument of
education.
(ii) To publicise – means when a person or an institution or the government
does any positive or good activity, it is the media which publicises such
activities and makes it known to the entire society. This publicising a
good activity, acts as a reward to the person doing such an activity, and
the publicising also gives an impetus to the others to engage themselves
in similar activities.
(iii) To expose – means the negative side of publicising. The media not only
publicises the good activities, but also exposes the negative acts in the
form of corruption and illegal activities of the public, as well as
government officials. The exposing activity of the media acts as a check
upon such activities.
132 Supra., p. 113
152
The role of the media either to make known to the public any
information, or to publicise or to expose is done only with the help of
technology. The advanced technology plays an important role in enabling
the media to perform its function. In absence of the advanced and
developed technology, the media would be unable to discharge its
functions efficiently and effectively. So one can easily say that; the
advanced technology occupies a special and conspicuous place in
enabling the media in shouldering it’s responsibility.
(a) Indispensible postulate of the society – Fourth Estate of the state.
Since a long time the media has played an acknowledgeable role; but from the recent
past it has played and is playing a pivotal and indispensible role in shaping a healthy
democratic setup. It is therefore considered as an indispensible organ of the
democracy. Not only this, but the media is regarded as the backbone of the democratic
foundation of the society. Many a times media is regarded as the ‘Fourth estate’ of the
state. Media makes us aware of the various social, political and economical activities
which are happening around. A similarity can be drawn between a mirror and the
media because just like the mirror133, the media also reflects or projects to us the bare
truth or the ground reality as it exists actually. An important aspect to be noted here is
that the media not only projects the positive aspects of the circumstances, issues, or
events but also shows those realities which are sometimes tainted negatively or could
be categorised as ‘harsh’ in nature.
(b) Media – watch dog of the society134
Since the inception of media, it has developed into different streams and has become
more active. The media can remind the politicians every time they keep any promise
unfulfilled, especially during the elections. Frequent reporting helps even the
illiterate people in deciding the right person to vote for. The continuously reminders
by the media persuade the politicians to fulfil their promises, in order to continue to
enjoy the confidence of the people, which is required to continue their position in
133 Infra., p.153 134 Supra., pp 120-122
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chair. If any politician does not care to fulfil the promise the media will repeatedly
communicate that to the public, who then will not elect that person again. Thus the
politicians who do not care to fulfil their promise are risking their chair, and all this is
possible because of the vigilant media.
Television and radio, which also forms part of the media has made noteworthy
contribution in creating awareness especially regarding uneducated masses.
Televisions and radio broadcasts the news in the native language. The listener or the
viewer does not need to be able to read or write, or have knowledge of any foreign
language. He can hear the news in his mother tongue and be equipped with the
knowledge about the current events. The media also covers the corrupt practises of
head of the village, moneylenders and local politicians, and thus have helped in taking
stern steps against them by making the appropriate agencies aware of their misdeeds,
and strengthening the democracy.
(c) Media a mirror which reflects the realities.
Another very crucial function performed by the media, is that it highlights and brings
to the notice of the society the mal administration, discrepancies, blunders, mistakes
or the mismanagement of the government. This function fulfils a dual aspects; like on
one hand it helps the society to know the mal administration etc activities of the
government, and on the other hand, it helps the government to improve its functioning
and minimize the mal administration activities, thus making democratic system more
transparent, efficient, responsible and accountable. Further the media helps the
government and the society to exchange the ideas, views and opinions with each other
which minimizes the friction between the government and the society and helps in
developing harmonious relationship between the two; which no doubt brings stability
and progress of the state.
(d) Diverse information made easily available
The modern age is regarded as the era of information and technology. The
consequence of the increased volume of information and technology has led to the
fact that; the society not only thrives upon the voluminous information, but the
societal life exists on the vast and diverse information. Apart from the vast
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information, diverse and varied information is imparted to the society from every
aspect of the society or from every nook and corner of the entire global arena.
In addition to the diverse information which is projected by the media, another very
crucial aspect is this that, this diverse information is imparted very easily and quickly.
In fact the vast information is available at the tip of the fingers of a person. So the
advantage of the media is two folds : one -vast varied, diverse, and multifarious
information is imparted to the public at large, and the second – such information is
made very easily and speedily available to the public at large.
(e) Deterrent effect upon the corrupt or unethical tendencies.135
Today the media is feared because it not only publicises any unethical, corrupt or any
illegal activities, but also provides almost each and every detail of the procedure
evoked to commit such an unethical, corrupt or any illegal activity. So also all the
people involved in such activities are also named and nailed down and are exposed in
front of the society. The list of the instances where the media has exposed the people
of corrupt and mal practises is endless.
Nitish Katara murder case
Jessica Lal case
Priyadarshini Mattoo case
The Ruchika Girhotra Case
Nirbhaya case
135 Supra., p 121
Media
Speedy and easy information
Varied and multifarious information To the public at
large
155
Nitish Katara murder case136
In the instant case a lower cast boy, and an upper class girl from Uttar Pradesh were in
love with each other. The parents of the girl were from high class and influential
political parties. The boy was murdered. The accused were acquitted in the lower
courts, however the media persuaded the case, and the case had to be reopened. The
ultimate result was that, the guilty people were punished.
Jessica Lal case137
The bar tender, Jessica Lal, was murdered by son of a politician Manu Sharma, Most
of the witnesses turned hostile, and he was acquitted, again the media highlighted the
issues and kept it in the limelight, which worked as an catalyst while delivering the
justice, and punishing the guilty persons.
Priyadarshini Mattoo case138
The accused was in love of the victim, and had proposed her. The victim rejected his
proposal. Then the accused made a false complaint that the victim was taking two
degrees simultaneously. Not satisfied by that he raped and murdered the victim. The
accused also tried to exploit the influential position and escape the clutches of the law.
The trial court had given him the benefit of doubt. The media took the matter. Here
the media used the tool of investigative journalism, and found the servant working in
the Priyadarshani’s house, who had supposedly allowed the accused to enter in her
house. The servant was missing since the crime was committed. The media put the
pressure, and did not allow the people to forget. As a result the matter was taken to
the High Court, which delivered its Judgement in 42 days, reversing the judgement of
the lower court.
136 Supra., p137 137 Supra., p140 138 Supra., p 141
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The Ruchika Girhotra Case139
Ruchika Girhotra was sexually molested by the Director General of Police and
freely roaming, the media persuaded the matter and got the police person arrested.
Nirbhaya case140
In 2012 when the unfortunate Nirbhaya was raped in the moving bus, and thrown
out of the bus, the victim then went to lodge the FIR, the police were refusing to
lodge the FIR, the media harped on the issue, not only resulting in the lodging the
FIR, but also the conviction of the culprits.
Many a times these mal practises were brought to the notice of the people, only
because of the strong organised, and vigilant media. In some of the cases mentioned
above justice was done simply because the media pursued and projected the facts
and the issues related to the corrupt or illegal activity.
The media no doubt has helped in doing justice by bringing the culprits into the
clutches of the law. Apart from the above quoted incidences, there are many more
instances, where the media has performed the duty of the vigilant policeman. One
can say that the media has played a supplementary role to the judicial function of
dispensing justice.
(3) Theories about Media Influence
Just as seen in the forgone pages, the media plays a very crucial role in bringing
about the stability in the society as well as imparting knowledge. The impact of the
media is tremendous and is of great magnitude; because of which the media is the
most powerful influential instrument existing today. One ponders to know as to
what is the reason behind the media’s influencing power. To put it in other words
what are the reasons behind the media being so influential. No other agency is able
to leave the lasting impact upon the minds of the people, as that of the media. Hence
139 Supra., p 143 140 Supra., p 121
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a cursory glance is given to the theories which give the reasons as to why the media
is so influential.
(a) Limited-Effects Theory:
Limited effect theory hails somewhere in 1940 and 1950. According to this theory the
people who have adequate intelligence, enough experience, and do posses intellect
will not be affected by what the media states. On the other hand it is the people who
do not possess the adequate knowledge will tend to believe the media entirely.
According to this theory the impact and the influence of the media is limited only to
the people who do not have adequate knowledge or awareness. This theory places a
severe limitation upon the media’s influencing powers. This limitation can be justified
to some extent on the basis of the time in which it was formulated. Regarding this
theory one fact has be taken into consideration is that the theory is propounded
somewhere in 1940 or 1950, and during that time the media was not as developed as it
is developed and is still developing today. The media at that time was limited to
newspapers, magazines, etc. Television and radio were not in full swing, as they are
today. Nowadays the media not only conducts the debates but also frames and limits
the issues of the debates which have lasting impact on the conclusions that people
may draw. This aspect of conducting the debate; framing and limiting the scope of the
issues was totally lacking in the era when the theory was propounded.
Another severe limitation of this theory is that it fails to take into account the fact that
many notable and renowned scholars were associated with the press. Such scholars
used to express their ideas and opinion through the press which used to not only have
profound impact upon the minds of the people but was capable of creating and
moulding public opinion. It has to be remembered that the educated masses were not
only influenced but also took the opinions and ideas of great scholars like Bal
Gangaadhar Tilak, Gandhiji, Nehru, Savarkar, Phule etc, as verdicts.
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(b) Class-Dominant Theory:
The class dominant theory states that few influential people control the media. The
bureaucrats and other rich and powerful people control the media corporations. The
bureaucrats decide what shall be sent through air waves, or through internet, or
through newspapers. They are also able to restrict the flow of information which they
do not want to project. According to this theory the influential aspect of the media is
totally at the disposal of the dominant class of the society; and because the class being
dominant, the news they project through media is also more influential.
(c) Culturalist Theory:
According to this theory the media is not capable to influence the masses at all. The
people who listen to the news broadcasted by the media make out their own meaning
and the value of the news according to their own experience and knowledge. Further
when the media projects any news, how the news is taken by the people depends
upon, the personal and social factors such as their age group, their financial limitation,
their region, their religion, their social strata etc. So this theory states the media
projects the news and each person is influenced according to the above mentioned
personal and social factors.
However, sometimes the news is so catching or appealing that it influences the minds
of people irrespective of class, caste, colour, religion and creed. For example in
Nirbhaya’s case the news was so appealing that it touched the hearts of the people
from every corner of India irrespective of any class, caste, colour, religion and creed.
The news was also understood in the same sense by these people, in the same sense in
which it was projected.
(4) Common challenges before the media
There is no doubt what so ever, that a free media is essential for the exercise of a fair
democracy. Without free media it is impossible to imagine any democratic society, as
the democracy will lose its essence. Without freedom, the press will be at the mercy
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of the rulers and will be under obligation to project any policy in the interest of the
rulers, even if it may be detrimental to the interest of the society at large.
A question now haunts is that whether the free media is really serving the people. The
answer unfortunately is no. The media is not serving the people as was expected to
serve, after freeing it from the governmental control. The said statement is not been
made to justify the government control on media, but put a fact that despite
independence from the government the media fails to do the duties as expected from
the media.
The question which arises before the researcher is that why the independent media
sometimes fails to perform its duties fairly, objectively and impartially. The hurdles
which come in the way of the media while performing its duties are as follows.
(a) Paid news
(b) Cross media holdings
(c) Glorification of news
(d) Neglecting important issues
(a) Paid news
One of the major concerns in India is the concept of paid news. The definition of
“paid news” as stated by Press Council is as follows, ‘paid news as any news or
analysis appearing in the print or electronic media for consideration in cash or
kind’141.
To enable us to get good understanding let’s study the concept of paid news. A paid
news is a where an advertisement is disguised as a news. To put it in other words, the
news channels advertise a party, or a person (mostly political) under the colour of
news. Now let us first analyse the term ‘advertisement’. In an advertisement a person,
an institution, any product, any event, or any other element is promoted through the
media, and the media for this promotion receives some monetary considerations. An
advertisement is different from the news which is projected by the media. The media
does not receive any monetary consideration for news, where as in an advertisement
141www.prsindia.org/parliamenttrack/report-summaries/issues-to-paid-news-2780
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the monetary consideration is a must. As per the rule of the Press Council the
advertisement should clearly distinct from the news content.
Paid news is an advertisement which is designed as news and the viewer is made to
believe that it is news, when actually it is not. Such a disguise is made to either
promote or defame someone, in exchange for consideration.
In the Lok sabha election of 2014, 3,100 notices regarding paid news were served to
the news agencies. Out of the 3100 cases regarding the paid news 787 cases were
confirmed142. This statistics of the paid news, is only of one year and one election;
one can just imagine the number of paid news which are rampantly occurring or
existing.
Paid news is a blatant violation of the democratic spirits. In a democracy, which
candidate is to be elected is the choice of the voter, which the voter has to make very
carefully. It is obvious that while making such an important decision the voter should
be well informed, only then he will make the correct choice. But if the press by
publishing the paid news is promoting any one candidate; then it is in a way
misleading the voters and destroying the basis of the democracy itself.
The fundamental difference between the news and advertisement is that, the news has
to be neutral, unbiased and fair. The news shall provide true and accurate report,
while advertisement on other hand need not be fair. It is made to promote a person or
promote some article or someone. Advertising is a means of communication with the
users of a product or service. Advertisements are messages paid for by those, who
send them and are intended to inform or influence people who receive them, as
defined by the Advertising Association of the United Kingdom143.
In a country like India, the people tend to believe the media, so when the media,
especially the press writes anything good or bad about someone the people tend to
believe it. The rich politicians in India take the advantage of such a belief, gets lavish
142 Id;. 143 http://economictimes.indiatimes.com/definition/advertising
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praise for them, or taint or tarnish the image of the opponents, by paying high
consideration amounts.
When any candidate resorts to the strategy of the paid news for his popularity, he is
not only deceiving the public but commits three main offences.
(i) The aim being only to get a favourable coverage, the paid news may make the
people to believe what may not be fair, or true. As the aim of the paid news is
to give the favourable coverage to a particular product, people or associates
rather than to publish the truth.
(ii) In case of paid news, where the candidate pays the money to the newspaper
agency, and this transaction between the candidate and the press or any media
is done secretly. It is but obvious that the candidate involved in such practise,
does not declare the amount of the money paid by him for such favourable
coverage. Thus the candidate ends up spending more money than he is
permitted to spend in election campaign. He is thus guilty of violating
Representation of the People Act, 1951.
(iii) Similarly the transaction being a secret media company who receives such
amount will not account the money so received by it from the candidate. This
means that the said media company is violating the provisions of commercial
and the fiscal statutes.
Paid news it is best described in following words “paid news” is a menace which
“started out as an abrasion, went on to become a disease and is now an epidemic.”144
“The phenomenon of “paid news” goes beyond the corruption of individual
journalists and media companies. It has become pervasive, structured and is highly
organized and in the process, which is undermining democracy in India.”145
144 http://www.aamaadmiparty.org/paid-news-undermining-democracy-press-council-report 145 Paid news undermining democracy: Press Council report P. Sainath available at http://www.thehindu.com/opinion/columns/sainath/paid-news-undermining-democracy-press-council-report/article407201.ece
162
To check the evil of paid news, the Election Commission of India initiated some
measures to curb the menace of paid media during election period. The Commission
issued orders to the chief electoral officers to appoint District level and State level
Media Circulation and Monetary Committees (MCMC). The main function of these
committees was to scrutinize the operation of the electronic media, mass media and
print media, and to stop any advertisement being disguised as paid news.
Causes of Paid News
(i) Lack of clear distinction between Editorial section and management.
The primary cause for erosion of the independence of journalism is the
contract system employment. Now the status of the journalist is reduced to
marketing agents. Therefore the journalists who should impart fair and
objective news seek and collect only paid news. Actually the press council is
in favour of a clear distinction between management and the editorial staff.
When this distinction is maintained then the independent journalists (editorial
section) can concentrate on fair and neutral news issues, while the people from
the management of the press can look after the advertisements.
(ii) Journalists and reporters are under paid.
The journalists and reporters are underpaid. Most of the media personnel get
very less wages. Many journalists or reporters work on commissions or on
contract basis 146 . They are mostly bringing advertisements, and end up
eventually working as market representatives rather than standard journalists.
As stated earlier the media is considered to act as a link between the government
agencies and the citizens. It is a well known fact that the media is a very potential
institution, which has the ability to create or generate public opinion or counter public
opinion of the common man. For instance, if the media projects that a particular 146As per http://164.10047.134/intranet/PAIDNEWS.pdf around 80% of journalists are getting very less wages.
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picture is one of the most wanted terrorists, people would trust it blindly. It has the
capacity to change perceptions or evoke emotions; which reflects upon the media’s
capacity to gain the faith of the public. In this scenario when the media is entrusted
with so much faith of the public, then the same faith is imposed in the media when it
is projecting the paid news. If the media on the basis of the public faith is going to
project the paid news and thereby deceives the public, then the concept of fair press
and the media waters down.
The evils of paid news try to malign the image of media and also raise serious doubts
over media’s freedom. One will not advocate free media, if it tries to cause hindrance
in justice, and supports the person or party for some monetary or other favours.
(b) Cross media holdings.
Cross media holding means owning more than one media business, by a single person
or an entity. The South Indian Channel Sun T.V has 14 channels, four magazines and
two newspapers.147 Incidentally approximately 400 channels are being provided by
only 11 cable distributers.148
In a democracy, multiple channels or modes are essential as there may be various
opinions related to a single issue. In order to get a proper solution all the views are
needed to be projected. However if the person or the entity who runs or owns the
multiple channels is the same; then the very purpose of having multiple channels or
mode fails, as they are mere different sources of the same person, imparting the views
and appreciating the ideology of the same person, running it. People will believe that
different channels are advocating the same ideology, hence the ideology is worth
following. This is nothing but a way of misguiding the people.
In the United Kingdom there are rules relating to the cross media holdings which are
as follows.
(i) A person can own only 20% of a Channel.
147 Shivaji Sarkar, ‘Cross Media Ownership - A Threat to Vibrant Democracy’, available at http://www.vifindia.org/article/2013/august/22/cross-media-ownership-can-india-checkmake-it 148 id
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(ii) 3 licences.
(iii) Any national newspapers not more than 20% of the market share. A person
who is holding 20% of shares of the national newspapers is prohibited
from holding more than 20% shares of the national newspaper market,
sometime known as the "20/20" rule, It is really a "20/20/20" rule.149
There is still a prohibition on political parties holding any broadcasting licences and
on religious bodies holding certain licences for Channel 3 and Channel 5, any national
radio analogue licence, and multiplex licences.150
Channel 4 and $4C may not hold Channel 3 or Channel 5 licences.
The Nominated News Provider for Chanel 3 cannot be under the control of political or
religious bodies or bodies which would be barred from holding a channel 3 licence.151
The Secretary of State may intervene in media mergers where he has concerns about
media plurality.152
The situation in India seems very different as that from the United Kingdom as far as
the regulatory and control provisions regarding the electronic media. It is seen that in
India there exists no common policy related to ownership and cross media
regulations. So also no restrictive provisions on the number of holdings are present for
the print and electronic media.
However, some limitations are being imposed by the Telecom Regulatory Authority
of India (TRAI) for different segments within the broadcasting sector. The TRAI
dictates the policy framework for each segment, such as DTH guidelines or FM radio
policy.
149 http://webarchive.nationalarchives.gov.uk/20140122145147/http:/www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on-media-ownership.pdf 150 id 151 id 152 id
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TRAI wants the laws to control the cross media holdings, but the media houses in
India have the fear that there will be proxy control by the government.153
There is no dispute that there shall be multiple informing bodies in a democracy,
however it is the very necessary that those bodies should be of different entities or
individual, rather than of the same individual, only then different views can be put
before the people.
(c) Glorification of crimes.
Today in this cut throat competition the news channels and news agencies want
sensational news to be in the race of TRP154. Crimes generally create sensation. The
media to get popularity end up showing the way crimes are committed, who was the
person successful in evading arrest, how lavish did the criminal live etc, making the
criminal virtually a hero, and when a criminal is depicted as a hero then his actions
makes a deep impact on the minds of the people, especially the young ones.
When Dhananjay Chatteerji, a convict for rape and murder of a British girl, was
hanged, the news channels were focusing on his minor things such as to what music
he listened, what he ate etc, so much that it looked as if he is a national hero rather
than a criminal. Few young children died, while imitating the hanging process.
If the crime is glorified, then the young people in the society will want to imitate the
same. This would be a most congenial atmosphere to produce more criminals in the
society.
The role of the media shall be to discourage the youth from the path of crime, and to
encourage the spirits of brotherhood, honesty, tolerance etc.
However continuous projection of crime may tend to corrupt the minds of the young
ones, and the society will lose its balance.
153 Prashant Jha ‘Media cross-holding in cross hairs’ available at http://www.thehindu.com/opinion/op-ed/media-crossholding-in-cross-hairs/article4743586.ece 154Television Rating Points.
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(d) Neglecting important issues
Another major problem with the media is it is often portrays lesser significant news as
real news sidelining the real news. Issues like which celebrity is getting married, who
is pregnant, etc is given coverage. Actual relevant issues such as economic position of
India, poverty, etc are either not covered properly, or not covered at all.155
Out of the many, one incident to show how the media neglects the real or important
issues and focuses only upon the glamorous news is about the week event of Lakme
India Fashion. In this event the models taking part in the display of fashion outfits,
were wearing cotton garments. During the same time of the fashion event, some
farmers who had cotton farms; due to poverty were committing suicide, not very far
away from the place where the fashion event was conducted. There were 512
accredited journalists covering the same event, and it is very sad to note that out of
512 journalists only 2 journalists covered the news of farmers committing the
suicide156. This instance clearly shows that the media covers only popular, interesting
and glamorous news. The news which is related to harsh realities is often neglected or
sidelined.
In this situation one really questions the media’s responsibility and its impartial or
neutral functioning. The media enjoys full freedom to pick and choose and then to
project the news, which it feels like or which is commercially beneficial to it. As the
media cannot be compelled to cover a particular type of news, it very conveniently
sometimes turns a blind or a Nelson’s eye to the ground or harsh or painful socio
economic realities, which are faced by majority of the Indian population. Instead of
giving adequate coverage to such types of news, the media engages itself in covering
the news which contains glamour and popular showbiz like the Lakme fashion event.
By covering the events like Lakme fashion, media is only covering entertainment
oriented news, and the issues of real concern for people go unnoticed.
155 Markandey Katju - ‘Media and issues of responsibility’ available at http://www.thehindu.com/opinion/lead/media-and-issues-of-responsibility/article2559712.ece 156 id
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No doubt, sometimes the media mention farmers' suicides, the rise in the price of
essential commodities, and so on, but such coverage is at the most 5 per cent to 10 per
cent of the total news coverage. The bulk of the coverage consists of showing the life
of film stars, pop music, fashion parades, cricket astrology etc.157
The raging floods in Jammu and Kashmir in 2014 attracted the attention of many
news channels because of the heavy damage and the vast devastation it had caused.
During the same time there were heavy floods in Assam which however went
unnoticed by the news channels.158 What can one say when media highlights the news
from one region and completely ignores similar news from another region.
The media has given a cold shoulder to the issues happened and happening in the
north eastern states of India. The entire north eastern zone which includes Assam,
Arunachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim and Tripura
are considered a veritable biodiversity hotspot. The geographical, social and
economical issues are rarely projected by the media159, where as some popular or
some news which is of commercial gain to media is conveniently reported and
projected160.
Tata Institute of Social Sciences (TISS), Guwahati, has found out that even the
Guwahati or Kolkata editions of national newspapers do not give enough space to the
coverage of environmental issues from the region.161
Even some important news related to health issues are sometimes is sidelined. The
media gives a very marginal coverage to the issues related to functioning of the
government and private hospitals such as; the inadequacies which are present in their
157 Id. 158 Nivedita Khandekar – ‘Neglecting the environment at our peril available at http://www.thehoot.org/story_popup/neglecting-the-environment-at-our-peril-7777’ 158 Id. 159 Id. 160 Id. 161 Id.
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administrations or the problems faced by the medical officials or the hurdles suffered
by the patients due to the complex and lengthy procedures of admission and discharge
of the patients. However we do not see such reporting in the media. What we see
instead in the media are discussions like have Anushka and Virat met together?162 or
what comment is made by Salman Khan, and for such, the news channel go to the
extent of procuring the audio clip,163 and it is the paradox that we have debates over
such issues.
It is not that the news channel should never give such news, but the news channel
should fix some criteria as to how much time, significance, space should be attributed
to such news.
The media persons may argue that it is the demand of public, and hence we fulfill
their demand, as the public is the consumer. Here the media cannot afford to forget
that the role of media is also to develop the good taste of public, they should make the
public inquisitive about those happenings which would have impact on their life, their
prosperity, their enrichment etc.
(5) Challenges before print media
There is no doubt at all that the print media has large circulation and there are many
readers who read and get enlightened by press. Press serves as a good agency of
communicator between government and a common man. However the press is not
free from the challenges. The few challenges are as follows.
(a) Limited reach because of low Literacy rate.
The newspapers can only be read by the people who are able to read. In other words,
only literate people can be communicated through the medium of press. The illiterate
162 Times of India June 22 ,2016 available at http://timesofindia.indiatimes.com/entertainment/hindi/bollywood/Anushka-Sharma-to-host-a-special-screening-of-Sultan-for-Virat-Kohli/photostory/52869074.cms 163 Newspaper DNA dated June 22, 2016 available at http://www.dnaindia.com/entertainment/report-rape-remark-what-salman-khan-said-exactly-2226330.
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people are likely to get excluded. They do not have the access to information. In other
words only literate people can only cast informed votes.
This would mean that it will be easy for political parties to garner votes of illiterate
people and occupy the power, and then turn deaf ears to informed people’s rightful
demands.
(b) Aliteracy
“There are worse crimes than burning books. One of them is not reading them.”164
Aliteracy is another problem with the press.
Aliteracy is derived from the word alliterate which the Webster defines as ‘the quality
or state of being able to read but uninterested in doing so’
Aliteracy means the people who can read and write choose not to do it. In other words
the people who can read and write choose to stay ignorant.
The concept of Aliteracy is different from illiteracy. An illiterate person cannot read
and or write; on the other hand the alliterate person knows very well how to read and
write but still does not do so.
The problem of choosing to be ignorant is not new in India and was found in
somewhere in 1959, just two weeks after the revolution of Tibet, despite being literate
and having access to newspaper the majority of people were ignorant and only one
person was aware as to who is Dalai Lama, when all the newspapers were full about
the news of Dalai Lama165.
In the age of communication, and where there are a lot of tools for information, we
find people who are not updated with current events. It is not because they do not
know how to read and write but because they are not interested or do not care to be
164 Joseph Brodsky brainy quotes 165 By Arthur Bonner, India’s Masses : The Public That Cant Be Reached available at http://www.theatlantic.com/past/docs/issues/59oct/masses.htm
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updated. The house wives who spend number of hours watching daily soaps, and are
unaware of current events can be cited as the best example of aliteracy.
Aliteracy is no doubt an impediment for democracy; also it is an impediment for print
media, as the circulation of the press can be affected. As the alliterate people will
never invest their money for buying a newspaper thus reducing its circulation.
(c) Stale news
Stale news is another problem regarding the print media. With advent of television
and internet, news in any corner of the world is circulated within minutes and
seconds. The same news will appear in the next day’s news paper. The people might
have lost the interest in reading that news. In today’s era where there is any news
which is visually represented and also be heard through audio just after the incident,
under such circumstances, not many people will wait and read the same news next
morning.
(d) Costs involved in production and circulation
The cost of production of newspaper is another challenge before the print media. The
cost of production seriously affects the business. There are various factors which
determine the cost of production of a newspaper or a magazine, for example, paper
used by them, colour or quality which is used for printing, as the price of paper differs
based on its quality, competition existing in the market also plays a crucial role while
determining the price. These costs are variable from year to year. Another important
aspect is print run. This depends on the size of the newspaper; it costs around 50 to
60% of the production cost166.
Another type of expenditure is the expenditure of the staff and miscellaneous
expenditure relating to the staff. The printing cost is variable whereas the expenditure
166 Sanjay Kumar, V.V.S. Sarma Performance and Challenges of Newspapers in India: A Case Study on English versus Vernacular Dailies in India available at eprints.exchange.isb.edu/355/1/K740-final.pdf
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of the staff is somewhat fixed. All these expenditures increase the financial burden on
the press.
(6) Social media
Social media means all the online communication tools which are dedicated to online
communication, data sharing, sharing of information, sharing career interest, etc.
The definition of social media as per Cambridge Dictionary is ‘websites and computer
programs that allow people to communicate and share information on the internet
using a computer or mobile phone:’
Social media has been an integral part of at least urban population today. Sites like
facebook, twitter etc, that have given a platform to an individual to assert himself. It
is not only the matter of mere assertion but through the communication, the business
also becomes easy. For any business to grow it is very essential that the producer
should reach to maximum number of customers, this can be done easily by the face
book or any other tool of social media.
(a) Development of social media
Man is a social being and hence cannot live in isolation. A Man needs to
communicate with the other human beings for self satisfaction as well as his
development. This need of being able to communicate with others has sown the seeds
of social media. So it can be said that the concept of social media has existed right
from the ancient times. The necessity of communication compelled man to develop
the methods of the communication. So previously the modes of communication were
pigeons, which flew to deliver the message which was tied to their legs with strings or
cloth. The very famous poet Kalidas has gone to the extent to make use of the clouds
as messengers in his Meghdoot kaavya. In the Hindu mythology even the domestic
wives in the ancient times, sent their messages to their parents through the moon or
the winds.
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Even if the above instances of the means of communication seem to be an
exaggeration, one aspect has to be noticed, that man has always indulged in inventing
some modes of communication. The modes of communication depend upon the
following aspects
(i) The development of the state.
(ii) The development of science and technology
(iii) Economic development of the state.
(iv) The social development of the state.
If the state was in the primitive stage of development, then the modes of
communication (social media) was also primitive or in a crude form. However if the
state has developed in all spheres, then the modes of communication (social media)
are sophisticated, for eg the internet. The present researcher has tried to analyse the
journey of social media from the primitive stage to the internet stage.
The year 1940, can be considered to be a crucial year in the development of social
media as computers were manufactured then. With the help of these computers the
data could be stored. The computers in those days were mainly used for military
centric commands and were used as control schemes. Slowly the use and the
application of the computer expanded and the computers reached the households of
very few. These computers were cumbersome and complex to operate; so also it was
not refined and sophisticated. The inventors at that time took painstaking efforts to
try and develop a link between all these computers. So if the message was typed in
one computer, then it could be accessed in another computer. This effort of linking the
computer together has laid down the foundation for further development of internet.
In 1960 the linkage between the computers was achieved known as the CompuServe.
It is popularly called as the initial form of the internet. With the help of the
CompuServe emails which were in a very crude form could be dispatched. Initially
the CompuServe service was regarded as business oriented, main frame computer.
But later this service got expanded and was used by the general public for social
purposes. So, later on with the help of CompuServe, debates, discussions and
meetings could be achieved. Sometimes some social discussions or social
communication was also initiated. The computer language had developed and
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‘Mullets’ had originated. This computer language was a very new concept and was
technically complicated. Hence it was not very popular and the use of it was very
limited. A little later the UseNet facility was developed. This facility became more
popular and the number of users of this facility increased to a large extent.
Simultaneously the BBS (Bulletin Board System) was invented which provided for
codes which allowed the users to communicate with the central system. The BBS got
access through telephone lines via modem. The Long distance calls through
telephones involved were costly; hence the bulletin boards were restricted to local
circles only. So also with the help of these techniques many files could be
downloaded. However while downloading the files from this method the distinctions
between the original and the pirated versions could not be drawn.
Though there were some restrictions on BBS, the technology was very popular in the
80s and in the early 90s. Somewhere in the 90s however, there was a revolution in the
field of internet. Some services like Jennings FidoNet could manage to hold grounds
as it linked a number of BBS into a worldwide computer network.
After BBS system the whole scenario of the computer world changed, as the first ever
social media web site was invented which was called as the Six Degree. The
applications of the site were many more as compared to BBS system.
(i) It enabled the users to achieve a social communication.
(ii) The users could create their profile.
(iii) They could create friends through profile of other users.
(iv) This application even allowed connecting people who were not
registered as users.
This Six Degree application system enabled the people to use computers to develop
their social contacts, hence paving the way for the development of social networking
sites.
In the year 2000 the world was engulfed with the term ‘blog’. The term ‘blog’ is a
part of the phrase ‘Weblog’ which was named by Jorn Barger, Editor of ‘Robot
Wisdom’. The concept of blogging enhanced the use of computers for social
communication; because people were able to communicate with the help of the blog
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with wide range of readers and users. So also the technique of messaging gained rapid
popularity, again enhancing social communication through media.
The concept of Blogging enhanced the importance of social media, and in the year
2000, websites like Linkdin, and Myspace came into being. The website Myspace
helped the users to create profiles and find friends. Even if the application of the
website Myspace is smaller as compared to today’s internet facilities, still the web site
Myspace was used by many users for social networking, and sometimes it was used
even for advertisement and promotion of certain activities.
Another website Linkdin surfaced simultaneously, which was different from website
Myspace. With the help of website Linkdin, the professional could achieve a link
through the network. Hence this site was for a particular purpose. The difference
between the two websites, Myspace and Linkdin is this that, the website Myspace was
of general nature, and could be used for social communication or networking.
Whereas the website Linkdin was for a particular purpose and could be used by
professionals, business groups, to communicate with each other.
Mark Zuckerberg in 2004 made a magnificent invention of the computer application
in the form of – The Facebook.com. The application of The Facebook.com was
initially launched for a specific group that is for the students of Harward University.
The application was very successful as its utility was tremendous. After gauging the
potential of The Facebook.com site, Mark Zuckerberg released the service of this site
to the world at large. This website The Facebook.com can be regarded as a gigantic
step in the development of the social media. Through this application of facebook,
profiles can be created and the friends can be made from any corner of the world.
From 2004 till to date Facebook.com can be regarded as most popular and the leading
social media, having more than a billion users.
In 2006 Jack Dorsey, Bitz Stone, Noah Glass and Evan Williams created the system
of twitter. By this system the users are allowed to say precisely, that is to tweet, the
only limitation is that the user can use only 140 characters. This twitter system is very
popular and is very widely used.
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In 2007 David Karp launched a micro blogging website called Tumbir. Today this
website is owned by yahoo and named after it. Websites like Foursquare, Spotify,
Google Buzz, Pinterest, Loopt, Blippy, Groupon, were launched and are regarded as
the popular social media. Some other websites which can be called as photo sharing
websites were created are Flickr, Photobucket, Instagram.
After so many websites it is but natural that the world of social media rocked and the
social media was not only used for personal or social motives, but it was used for
business or commercial purpose rampantly. Every brand is now taking their product
on social media to get more buyers, so one can say that the trade and profit is carried
out with the help of social media. Apart from this, the website owners of different
businesses, professions, etc are advertising their product as well as their websites on
the social media websites.
The social media has put another step forward when messenger applications which
could be installed in mobile, like Whatsapp, Line, Wechat were created. By way of
these application two or more people can chat, send photos, videos, etc. This type of
media also (in particular whatsapp) is slowly becoming integral part of business and
profession.
As one can see that the social media from a primitive stage, has developed to the most
sophisticated mode. The social media has also undergone a sea change in its function;
because initially the social media’s function was only to cater to social
communication, and today, the social media is playing an important role in almost
every aspect of human life. With the help of social media, the users of it use it to
promote their business, trade, advertise their occupation etc. The artists use the social
media to promote and advertise their art pieces, including music. The professionals
use the social media to promote their profession and intellectual work; sometimes
education is also imparted through the social media. Cultural, religious and political
events are promoted with the help of social media. It can be said that the ancient
social media performed the function of social communication, and the today’s social
media, 2016 is omnipresent because almost every activity of human beings as well as
the institutions cannot be carried out without the help of the social media.
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(b) Legal implications of social media
In the present times no other agency has gained popularity as much as the social
media. The social media enjoys hype, importance and popularity throughout the
world. The same is true in the case of India.
The youth in India today is zapped with the social media. The facebook in 2014 had
the 112 million users, this figure itself suggests that the number of users in India is
only next to United States of America. The number of users who daily use the
facebook through their mobile is 45 million. According to Facebook India Managing
Director, Kirthiga Reddy a considerable number of Indians like to be connected with
the facebook wherever they are. This is called as FOBO (Fear Of Being Offline)167
The social media now, not only is limited to the personal use, but also has made a
significant mark in the professional and business circles. Many small and big offices
have the whatsapp group, and many business entrepreneurs have links to the
facebooks. The social media is a very useful tool for communication. It goes far
beyond entertainment and allows two individuals or organizations, foreign to each
other previously, come together, and make profitable deals, which otherwise would
not have been possible.
With the above discussion it becomes clear that the social media is popular in
personal as well as career circles. However the social media is not free from
implications.
(i) Content ownership
There is a problem regarding the content ownership. The question is who owns the
content which is posted on the face book. The answer to this question is pretty simple,
it is the face book which owns the all the intellectual property rights, as per the
agreement between the user and the face book site. When any individual signs the
face book or any other social site then that social site becomes the owner of the
intellectual property rights relating to the content posted by that person. These
intellectual property rights will allow that media to post the details of that individual
167 Indiatoday, 17th December 2014, available at http://indiatoday.intoday.in/technology/story/112-milion-facebook-users-in-india-second-largest-user-base-after-us/1/407261.html
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whenever they feel like doing it. This can cause severe damage to the person who
posts something on the social media.
Another issue is that, even if a person deletes his page, then will the content be
actually deleted or will it surface again? Sometimes the user wants to delete the
content permanently, and if the content is not deleted by the concerned social media,
even after it was deleted by the person who posted it, then the person deleting it, is
straight at loss as he cannot sue the social media, nor can compel them to delete the
page.
(ii) Defamation and Other Torts.
Defamation is a curse that the social media suffers. The torts like defamation can be
easily committed by the facebook. Any individual can write anything which is bad, or
derogatory about the person he hates.
Many people, who are not aware, may due to their ignorance, end up in getting into
legal trouble. The following acts on the social media can constitute as defamation, and
will invite the legal action.
Making allegations that a person is committing any sexual harassment,
without any authentic verification. However, it will not be an offence, if the
person against whom such tweet was made, is convicted by the competent
court.
A tweet, which can be misinterpreted can amount to defamation and can
invite the legal action. Any comments, statements of which may be
interpreted in such a way, that the statement may carry some different
meaning, which may not be the intention of the maker. However the same
my invite the legal action.
Any personal attack of facebook or any other social media can attract the
legal action.
Name calling over social media can also can invite a legal action against the
person doing so.
Anyone who is linked with any possible defamatory substance is also liable
for defamation. For example if a person likes a statement which is already
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defamatory, then the person liking defamatory statement can also be held
liable for defamation. This happens generally, when a link posted by
someone which is liked or shared on the social media by others.
Social media and Criminal Activities.
The social media has also become a place for criminal activities. Lot of criminal
activities is taking place through the social media.
(i) Posting offensive text
The offensive text related to known or unknown person, institution, is
posted, with a view to malign his image. The content here is generally not
verified, and the language used against the person is very harsh. Even false
allegations are levied. Use of this platform is often done to do character
assassination, to do lewd comments etc.
(ii) Posting morphed or private videos
There were series of cases where the secret videos of the ladies were taken
and then they were blackmailed. Recently in Tamil Nadu a girl committed
suicide after her morphed pictures were released along with the mobile
number of her father168. This is not the only or isolated incidence, there are
many others. A spy camera was installed in the changing room of Ms
Smriti Irani, the then HRD minister, at FabIndia oulet, Candolim, Goa.169
Such type of activities can be done as it is very easy to have access to
social media. Many unhappy people may tend to do so with a view to
extract revenge. Some may do it to force a girl to submit to their demands.
(iii) Posting the links of porn videos
This kind of offence is done by the people with perverse mentality. They
upload or share the porn videos. This is also a criminal offence. 168 http://www.newindianexpress.com/states/tamil_nadu/Girl-commits-suicide-after-morphed-pics-appear-on-Facebook/2016/06/28/article3503206.ece- Published: 28th June 2016 169 http://indianexpress.com/article/india/india-others/smriti-irani-spots-camera-facing-trial-room-police-register-fir-against-store/published on April 4, 2015
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(iv) Online defamation
The social media can be said to be the hub for defamation. Young children
who are above 12 years of age have an access to the facebook170. The age
of the people who get access to social media like whatsapp may be even
less. The children of such young age may not be well conversant with the
legal provisions relating to defamation, and end up in posting something
which may be defamatory. The nature of facebook is such that the
comment may disseminate very fast. Some other people may do it
purposely with a view to get perverse pleasure.
(v) Spreading religious hatred
Facebook and other social media are also flooded with the messages which
tend to spread religious hatred and communal violence. Generally on
facebooks this message is forwarded with intention to get like. However
they end up spreading the feeling of jealousy towards the other religion,
which might be detrimental to the unity of the nation, pushing the nation
on the brink of communal disharmony.
(vi) Spamming
To spam means to send immaterial or unwanted messages through the
medium of internet. Anybody who does so is termed as a spammer.
Previously these spammers used to target those email ids which they could
obtain easily from chat rooms, customer lists etc. The result would be that
the inbox of the mail would be blocked. Later on however the email filters
also got refined and as a result the inbox does not get blocked. The
spammers now have started to attack through social media. Out of many
ways, one way as to how the spammers carry out their attack is that they
hack the account of the user, and then they can send the fake messages to
the followers or the contact list.
170 It is mandatory that the person who is desirous of having facebook account shall be of 12 years of age.
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(vii) Cyberstalking
Cyber stalking is just like ordinary stalking. The only difference is that, in
ordinary stalking the stalker physically stalks the victim, and in cyber
stalking, the stalker keeps a tab on the victim through the use of
technology. The cyber stalkers use the gadgets like email, messengers to
keep the tab on their victims. They harass the victims by monitoring them,
threaten them or to manipulate or destroy the data of the victim etc. The
cyber staking can have serious impact which is as under;
It can be dreadfully frightening
It can make one lose their friends.
It can affect, career, self confidence and self image.171
There are a few steps, to avoid the cyber stalkers.
Never give your system in the hands of the strangers.
Never keep anything open on your system. Make it a habit to log out
once you are done.
Avoid giving the password to anyone, also keep changing the
password.
Do not open any emails, unless it has come from trusted source.
(c) Social media vis a vis right to privacy
In the age of the social media, the right that gets jeopardized the most is the right to
privacy.
Privacy according to Black’s Law Dictionary “right to be let alone; the right of a
person to be free from any unwarranted publicity; the right to live without any
unwarranted interference by the public in matters with which the public is not
necessarily concerned”.
171 By Marian Merritt, Straight Talk About Cyberstalking available at http://in.norton.com/cyberstalking/article.
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In ancient times, in India the protection of law was awarded against any physical or
property related encroachment, for example hurt, theft, murder etc. But now the
sphere requiring the protection has increased, as crimes are not only limited against
the body and property. In the present times people need protection in some other
spheres like intellectual property rights, privacy, cyber protection etc, which were
unheard of in the ancient times.
(i) Meaning of right to privacy – constitutional perspective
The right to privacy was discussed in Kharak Singh’s 172case, where it was stated that
regulations which permitted the surveillance of the suspects, would contravene the
right to privacy, if the regulations were unreasonable. The Supreme Court cleared had
stated that the right to privacy is implicit under Article 21 of the Indian Constitution;
however, the right to privacy is subservient to the security of the state.
Right to privacy got a clear interpretation after Maneka Gandhi’s173 case, as the
Maneka Gandhi’s judgement was pronounced against the background of Universal
Declaration of Human Rights and International Covenant on Civil and Political Rights
1966, and both these international document incorporate the right of privacy. So in
Maneka Gandhi’s case the Supreme Court gave a very liberal interpretation to the
terms ‘right’ ‘liberty’ of the Indian Constitution. The Supreme Court stated that, these
terms have very wide implications and broad dimensions. Hence right to privacy is
included in the concept of life liberty. Further the court has stated that there is no need
for the right of privacy to be mentioned expressly or specifically as a fundamental
right, and it can be implicitly included in the Article 21 of the Indian Constitution. In
the Indian legal system it is a settled law, that the right to privacy is a fundamental
right, incorporated in Article 21 of the Indian Constitution.
The main focus of social net work is to build up a social structure with the help of
media to be able to communicate and interact socially between the public at large. In
the social net work personal information is communicated to other people. Here 172 AIR 1963 SC 1295 173 Supra., p 39
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sometimes right to privacy of a person may be jeopardised sometimes. Now the
question arises how to balance the working of social media and the right to privacy of
a person.
(ii) Violation of right to privacy by the media inclusive of social media.
Accessibility of the data to the third party.
Information is sometimes programmed or stored, or imparted for a particular purpose
to a particular party. But sometimes it may happen that, this personal information falls
in the hands of another person whom the user does not to share the information with.
This happens with the misuse of number of websites such as the facebook, Myspace
etc. Another method to provide the information to another unknown person is
Browser multiplayer games such as Farmville, Quiz planet etc. In such types of
games, if the players click specific advertisement or an icon of the other player, then
the profile of that other player will be displayed directly to the person who clicks that
icon or advertisement. The danger involved here is that, personal information through
the profile is made available to any person, which in turn may be misused and hence
the right to privacy is violated.
Today it is a compulsory fashion to put each and every, and sometimes even the
minute information about oneself, family, friends, etc on social media like the
facebook. Such posts on the social network can be easily accessible to the cyber
criminals, who do not hesitate to invade the privacy of the person for their gains.
The preteens and the early teenagers are an easy prey to the cyber criminals, as they
tend to believe their new friends, and overlook the safety measures. Hence the right to
privacy of such children is invaded.
The age verification mechanism, of social media is not at all reliable. At times the
underage children tend to open account on these social sites, posing as the persons of
appropriate age, and become easy victims at the hands of sexual predators by
violating the right to privacy.
183
The employment sites request the concerned person to furnish the full personal data,
along with CV and contact number. If by any chance the data is leaked through them,
then naturally the right to privacy is invaded.
The most glaring examples of the violation of the right to privacy by the social media
is in the cases of celebrities, such as the cine stars, sport stars, politicians, and other
eminent social figures.
News reporting witnesses the direct contradiction with the right to report and the
invasion of privacy. The right to report is the prerogative of the journalists, so also
how much time to allot is also their discretion.
If the above discretions are taken away from the journalists then it would amount to
control of media by an external agency.
The journalists on the other hand tend to take undue advantage of the discretion
granted to them and thereby invade the privacy of the celebrities, such as the cine
stars, sport stars, politicians, and other eminent social figures. The people are very
much interested in knowing the minute details of their favourite star, or leader as to
what they eat, what they like etc. The journalists also follow the celebrities in order to
fulfil the demands of the public and thereby get the TRP to their channels. While
doing this the journalists knowingly or unknowingly violate the right of privacy of
these celebrities.
The Aradhya controversy is the glaring example of the above mentioned point. When
Aishwarya Bacchan was pregnant, lot of journalists were flocking at the hospital and
the residence of the Bacchans reporting the minute details.
The Bacchans had to get an order from the court restraining the media from reporting
anything in respect of the pregnancy till the official bulletin was issued from the
Bacchans.
The incidence of Virat and Anushka controversy is also no different. When India was
playing against England in 2014, Anushka Sharma had gone to England, the
newspapers at that time were full of headlines like ‘Anushka Sharma is keeping Virat
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Kohli company in England’ 174 , the news media. The media also gave a detail
discussions as to which dress Anushka, wore175. These descriptions relating as to the
dress and how Anushka was cheering was not at all mere reporting, but it is clear case
of infringement of the right to privacy. The duty of media is no doubt is of reporting,
but it is not the duty of media to report as what does the actress wears, or can the
actress be the lucky charm for the cricketer or not. The reporting of such events is
clearly against the ethics of journalism and a blatant violation of privacy.
In the present electronic media age, there is no doubt that the social media channels
have to exists and be used by public at large. On the other hand right to privacy has to
be preserved and protected.
Primarily one can say that the social media channels are innocently or neutrally
conducting their functions; and only their applications are misused then the right to
privacy tends to get violated. The users of the social media channels should be aware
of three things viz (i) their own right to privacy, (ii) another person’s right to privacy
(iii) The safeguards which have to be followed, while using the social media channels.
When one is aware of these three factors, it is difficult to invade the right to privacy
by the social media. If the social media channels are used within the legal limitations
then there is no question of violation of right to privacy; and the two terms instead of
being opposite to one another, there can be a harmonious co - existence between the
social media and right to privacy.
(d) Social media as a tool of harassment.
There is no doubt whatsoever about the fact that the social media has become the
integral part of our personal and professional life. The social media is not only limited
for social purposes, but it also play a crucial role in enhancing the success in the
professional world as well.
174 Vickey Lalwani Mumbai Mirror | http://timesofindia.indiatimes.com/entertainment/hindi/bollywood/news/Anushka-Sharma-is-keeping-Virat-Kohli-company-in-England/articleshow/38665114.cms - Jul 19, 2014, 175 Id.
185
Though this is the meritorious side of the social media, there is a dark side to it. The
social media has become a tool for the harassment of children, teens, adolescents, and
women. Apart from this even the frauds are committed through the medium of the
social media in the professional sphere. The social media being uncontrolled, has
encouraged the criminal and the terrorist activities. The social media can be regarded
as a boon and a curse simultaneously.
Let us first study how the social media is used as tool of harassment in personal
sphere. The below mentioned acts are offences and affects the victim emotionally,
making the victim to go low on confidence. The following type of offences which
affects the children more.
(i) Cyber bulling
Though it is true that this offence can be done with respect of any person,
the worst hits are the young children. In this type of offence the attacker
posts abusive, derogatory, hateful, nasty comments. It tends to affects the
young minds deeply and they have the scars of that wound, which may
affect the life of the young ones adversely.
(ii) Age inappropriate Contents
The internet makes available virtually any content within micro seconds.
However not all contents which are available may be desirous to watch or
read, especially by children. Though it is true that there is a parental
control system to regulate as to what, the child should watch, the
inappropriate contents could still be watched by the child, if someone
makes available, the said contents for them. These inappropriate content
might influence the young minds in a wrong way.
(iii) Online Grooming
The internet allows to keep anonymity and the exactly that is thing which
is exploited by the attackers during this online grooming. Here the attacker
poses as a person of same age as that of child and befriend him. Speak to
him and win his trust. When the child starts to trust the attacker
completely, then the attacker would expose the child to sexual content,
186
corrupt his mind, and then manipulate him. In other words the child would
be bullied by a buddy.
With the changing dimensions of the social media, it will neither be advisable nor be
possible to prohibit the access of children to social websites. However, we can
supervise the content they watch, without making them feel, that the elderly people
are spying them. The elderly people have to take active interest and understand what
activities are being done by the child on the social sites. If the need arises then set up
some rules for the use of the internet at home. These steps will ward off the danger of
any cyber attacker who will try to corrupt the young mind for his perverse pleasure.
The women also are harassed through the instrument of social media.
(i) Using morphed pictures
The morphed pictures are used by the cyber attacker either to take revenge
or make submit her to their demands.176
(ii) Cyber stalking
The stalking is done by using devices, rather than physical stalking.177
Apart from this the one more concern about the social media is that it ruins the
marriages. Social media, especially the whats app is one of the reasons for the
increase of the divorce rate. Out of 5000 divorce cases at least 3000 are related to the
technology. The spouses take the aid of technology to prove that the other spouse is
cheating on them178. SMS and email are also nowadays submitted as evidence.
The social media not only harasses the people in their personal circle but also may be
reason for the loss of people at the professional circle as well. Though it is not
possible to cover all the threats, some activities of the cyber attackers, which can ruin
the professional life is mentioned below.
176 Supra., p 177 177 Supra., p 179 178 http://www.dnaindia.com/scitech/report-smartphones-facebook-whatsapp-break-down-marriages-in-bangalore-1969218
187
(i) Executive impersonations
As the name suggests this type of attack is done by making the people believe
that the sender is the genuine company, when it is actually not. The modus
operndi used by the attacker is that, he creates a fake account of that company
or concerned person and then sends defamatory messages regarding that
company, through the phishing links. This can be done very easily and with
low cost, as it does not take a long time to open fake email account of the
targeted. If this fake account is seemingly appropriately created, then it
appears as if it is an authentic account of the company. The clients or the
concerned persons will respond to the emails sent through this account. The
attacker now can send slanderous, false, or those messages which are
detrimental to the company, from this fake email id. This can cause a great
prejudice to the company.
(ii) Watering hole Attacks.
This is a type of attack generally launched on an organisation, company etc,
rather than individual. In this type of attack the attacker initially studies in
detail as to which are the websites that are used by the victim organisation or
company. Then the attacker infects those websites, and obtains the desired
information or result with ease. The major concern regarding this site, is that it
is very difficult to know whether the site they are seeing is infected or not. The
other concern is that it is very difficult to dodge this virus and also train the
staff to deal with this virus.
(iii) Hashtag hijacking
Hashtag hijacking is said to have done when the hashtag which is created by a
particular company is used for other purpose, than it was created. Generally
the hashtag is created by the company to promote their particular product. This
hashtag is hijacked by the attacker and used for some other purpose.
There are two types of hashtag hijacking. One is called as ‘attention seeking
troll’ while the other is called as ‘The PR campaign gone wrong’.
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The attention seeking troll’ is not dangerous, as the hacker just promotes his
junk, which is not a rival product. It is as the term suggest, the hijacker wants
attention of the people who visit that hashtag. However in this case the
hijacked hashtag is being used for the purpose, other than for which it was
created.
The second one which is called as ‘The PR campaign gone wrong’ is a serious
threat for the company as it has a serious prejudice to the profits of the
company. In this type of attack the hijacker uses the hashtag to detract the
people rather than to attract. Such a type of hijacking can have tremendous and
lasting negative effects on the company. The glaring example is of Mcdonalds
hashtag called #McDStories was used in a way, which was not expected by
the Mcdonalds company in 2012.179
The threat of social media is also stretched beyond the personal or professional
circles. It has also become a hub for carrying out terrorist activities. The terrorists can
plan as to which type of attack is to be carried, when it is to be carried out, whether
the attack to be carried out is physical or cyber. There are also professional unethical
hackers who hack the websites for exchange of hefty fees, or do it for carrying out
terrorist activities.
(7) Conclusion
There is no denying in the fact that the media is the backbone of the legal system. In
the recent times the media has grown voluminously and in different spheres. The role
of media has increased in proportion to its growth. The media has diverse roles to
perform in a society like the role of an unbiased informer, role of educator, role of a
mentor, the role of instrument of social change. While performing these roles the
media has to face the stiff challenges such as violation of right to privacy, illiteracy,
aliteracy etc. Sometimes the media oversteps the line of freedom and causes invasion
of privacy of other person or nuisance. This is because the media wants to create
news, for the considerations, best known to them.
179 Anita Campbell What is Hashtag Hijacking? Available at http://smallbiztrends.com/2013/08/what-is-hashtag-hijacking-2.html
189
Speaking about the social media, it has undergone a sea change, and today, the social
media channels are used for, employments, advertisements, to further social contacts,
and for the professional life as well. If the users of the social media keep themselves
within legal limits, then there is no fear of violation of right to privacy and balancing
of the conflicting interests can be achieved between these two seemingly opposite
concepts. The users of social media should adhere to the safety rules, so that the
offenders cannot victimise the users easily.
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Chapter –VI
Conclusion
As the nomenclature of this research indicates, the researcher has made a humble
attempt to assess the role of the media and elements of its accountability. The subject
matter of this research has fascinated the present researcher, because of the breath
taking or dynamic growth of the media industry throughout the world. Naturally one
ponders to think, upon the various counters of the media industry such as the rapid
growth of the media, role of the media, the hurdles and challenges faced by it, etc.
One thing is for sure that the media has grown rapidly, and definitely, it has a
powerful potential, so much so that, it is capable of making or breaking the
government, by influencing the minds of the people.
Every research begins with the research problem, and in the present research the
problem statement of the research was, how to balance the conflicting rights of the
press with the rights of the individuals. Here the researcher would like to rely upon
the Roscoe Pound’s theory of Social Engineering. Each interest should be defined and
limited so that one interest does not overshadow the other interest so that the
conflicting interests can be balanced. The rights of the press as well as the rights of
the individuals are very well defined by the law. Sometimes the media for other
extraneous considerations oversteps its limits, and the balance gets tilted towards the
side of the media which results in the violation of right to privacy of an individual.
Here the humble submission of the research student is that the media should confine
itself within the jargons of ethical, neutral and objective standards apart from the legal
limitations, so that the right to privacy of the individual is secured; and the conflicting
rights can be balanced. The researcher would also like to state that the modern natural
law theory can be made applicable in the cases of right to privacy and right of
reporting of the press. According to the modern natural law, the natural rights will
prevail within the framework of the positive law, and the positive law will prevail
with minimum moral content. Here the media’s right of reporting and imparting
information should prevail within the legal limits; however the media should adhere
to the minimum content of the morality in the form of ethical and unbiased reporting.
After the completion of the research ie the collection of the data, arranging of the
data, analysing the data and interpreting the data it can be said that the hypothesis
191
forwarded in the initial stages is proved to be correct and the concluding remarks are
based upon the hypothesis.
In the Indian Legal system every institution, be it the state or the private institutions,
including the branches of the state are accountable to some higher authorities. Now
the media being so powerful, should it not be accountable? It is humbly submitted,
that the accountability of the press is quite vague and weak, as the media is
accountable to the public at large. Even the parliament is accountable to the people,
but this accountability is effective or strong as the members of the lower house are
elected by the people and hence the elected members are to a certain extent, deterred
from doing anything, which goes against the public. However in the case of media,
even though it is accountable to the people, it is not elected by the people. The media
can only be criticised by the public, and sometimes the TRP ratings of the media may
fall. This is the only check on the media exercised by the people and hence the media
has become a self declared boss- a free, independent, and above all (to some extent.)
The media should act, responsibly, neutrally, objectively and abide to the ethical
standards of journalism on its own, and should not wait for the law, forcing it to be
ethical or neutral in dispensing its duties. Every time the law cannot interfere and set
standards for neutral and unbiased reporting, because if the law does so, then the
independence of media will be at peril. At the same time the media should not take
undue advantage of this fact and confine itself to self imposed ethical limitations.
The Chapter - II of the present research deals with the constitutional framework of
the freedom of the press. To deal with the concept of media, it is mandatory to analyse
the constitutional provision, which deals with the freedom of speech and expression,
inclusive of the concept of press and media. Hence the entire second chapter is
devoted to the constitutional provision of the freedom of speech and expression-
Article 19(1)(a) of the Indian Constitution180. The right of freedom of speech and
expression has prevailed, since the times immemorial as the necessity of expression is
very natural and inborn in human beings. So it can be stated that, expressing oneself is
inherent in human beings, which is beyond the scope of any legal parameters. To put
it in other words, freedom of press has not prevailed because of any sanctions but is
180 Supra., p. 29
192
born with the human beings. In the ancient times, expression prevailed in very crude
forms, such as paintings or carvings on stone or woods. The first informal press can
be traced to the Muslim era, where the Mughal rulers, used to select people to report
to them on the on goings or the happenings in their regions. The severe drawback in
this system was that, the reports which were prepared for the king, were exclusively
for him only and the public did not have access to it181. The establishment of a formal
press is evident in the pre British era182. It can be seen that the Indians were very keen
and adamant to establish and use the press, with the motive to unite the Indians and to
revolt against the British government. In those days, the media was prevalent in the
form of the press only. Press was used as an agency to promote the independence
activities. The Indian freedom fighters such as Girish Chandra Ghosh, Gangadhar
Bhattacharya, Tilak, used the press aggressively to promote their freedom struggle.
On the other hand the British government tried to impose stringent restrictions on the
press, in order to curtail or suppress the freedom movement. One can draw the
analysis that the press has tremendous potential even in those days, as the freedom
fighters used it as a popular platform, to achieve their own motives. On the other side,
the British Government was aware of the power of the press media, which had the
capacity to destabilise its rule in India, and hence kept on imposing such tringent
rules, that ultimately the press should suffocate and die.
After analysing thoroughly the press in British era, the researcher has turned his
attention to the post Independence status of the media183. After Independence the
Indian Constitution was enacted and the Fundamental Rights are rooted in the
constitution. Media and press are incorporated in the right to freedom of speech and
expression which are enshrined in the Article 19(1) (a) of the constitution and the
preamble of the constitution. It has been time and again stated by the Supreme Court
that the freedom of speech and expression includes press184 and the various aspects
related to the press. A point to be noted over here is that in those days press was the
only form of media, and hence when the word press is used, it includes the entire
181 Supra., p. 31 182 Supra., p. 32 183 Supra., p. 35 184 Supra., p. 39
193
sphere of the media. But today, the media is a larger term, and the press is a part of
media.
In ancient times (pre- independent period) the press was a larger term and the media
was inclusive of the press.
In the modern times, the media is the larger term inclusive of press, TV, internet etc
The media is regarded as the founding force of a democracy and hence the rights of
the media have to be guarded zealously; so that the press can function freely and
effectively. But again this does not mean that the media’s powers should go
unfettered. Limitations on the powers of press and media are must, as the scope of
their powers is very vast185. The scope of the press includes the power to circulate the
information, which can be regarded as the most prominent aspect of the press. If this
power is not attributed to the press, the press cannot survive, as it is through
circulation only that the press reaches out to the masses. So many a times the
government has tried to curtail the size of the circulation in order to reduce the
influence of the newspapers186. The power to receive information is also a vital power
enjoyed by the press, because if the information is not received by the press, how can
the news be created and circulated by the press. 185 Supra., p 45 186 Supra., p 67
Press
Media
Press
TV
Radio
Media
Internet
194
Other types of powers of the press are also analysed in detail. One of the powers of
the press is to conduct and hold interviews. It is necessary to bring out all the facets
of the information or the event related to the interview. No rights are without
restrictions and so is the case with the right to interview. These restrictions are dealt
in the appropriate places; however the present researcher would like to humbly state
an aspect regarding the restrictions on the right to conduct interview. The interviewer
should ask only such questions which are related to the subject matter of the
interview, and if the interviewee refuses to give an answer or remains silent, the
interviewer should not be in a hurry to draw his own conclusions and should not at
any cost insult or pass an adverse comment upon the interviewee. In the present
television interview sessions it is seen that the interviewer becomes the judge, and
passes a judgment upon the interviewer’s committal or non committal answers. It
seems that the present interviewers or the interviewing agency has forgotten one
basic limitation that the purpose of the interview technique is to only cull out the
information and put it before the public and allow the public to formulate its own
opinion based upon the information obtained through the interview. Unfortunately
the interviewer passes the judgment himself creating the bias in the minds of the
people, especially when the interviewer is a renowned personality in the media field.
Some other limitations of the interview technique are as follows
(i) The interview will only commence if the interviewee gives his consent.
(ii) The interview shall stop at the will of the interviewee.
(iii) The interviewee will not be forced to answer any question, which he
does not want to answer.
Another type of the power of the media is to report the court proceedings. This is a
very important power and is widely used by the media. The publicity brings
transparency, and transparency leads to justice. In a democracy even the judiciary has
to be accountable. As it is popularly stated, that justice must not only be done, but it
should also be seen to be done.
Though, both, an ordinary citizen, and press enjoy the same right under constitution of
India, in reality, the press enjoys more liberty or rights as compared to the individuals.
195
The press enjoys the privilege of sitting in the press bench and also receives any
information regarding any proceedings on account of the citizens right to be informed
on matters of public importance.187
An exception to this right to report was carved out by the Supreme Court in Sahara
India Real Estate Corpn ltd v SEBI188 case where the superior courts could postpone
the reporting of the case proceedings in the interest of the justice, however the court
should not postpone the said reporting of the case for some duration without
reasonable cause. Even the in camera proceedings shall be used only if it is in the
interest of justice.
Another special power of the press is to attend and report legislative proceedings. In
a democracy, even the legislative is also accountable to the public, and hence the
Article 361 of the Indian Constitution confers the right of publishing a true report of
the parliamentary proceedings. The limitation of this right is that the publication of
these legislative proceedings should not be done with malicious intentions. However
the legislature has always attempted to curtail this right of the press, the glaring
example of which is the Searchlight case189.
Today the power to report the parliamentary proceedings has become more vital as
there is a live telecast of the parliamentary proceedings.
Another conspicuous power of the press is to act as an advertising medium. Initially
the advertising did not fall under the ambit of Article 19(1)(a) of the Indian
Constitution, as the rule was laid down in Hamdard Dawakhana v Union of India,190
where the court stated that advertisement were made with intention to have
commercial gains and hence they cannot avail the benefit of freedom of speech and
expression. However this judgment was overruled in Tata Press v Mahanagar
Telephone Nigam191 , where the Supreme Court stated that even advertisements were
187 Supra., p. 48 188 Supra., p. 48 189 Supra., p. 49 190 Supra., p. 49 191 Supra., p. 50
196
covered under Article 19(1)(a) of the Constitution. A point here to be noted is that
today the media, especially the television and newspapers give a lot of weightage to
the advertisements rather than the substantial news. Sometimes advertisements occur
on the first page of the newspapers instead of the most important or the prime news.
Ethically the news and the advertisements should be arranged in a proper sequential
manner. The first page of the newspaper should be devoted to national or the
international happening of the day before. So the reader is enabled to get the
information at one glance at the first page, which is the prominent page of the
newspapers. Advertisements should be dealt with last two or three pages of the
newspapers.
Another type of power of media which is increasing day by day is the power to
Broadcast. In the 21st Century there was rapid growth of technology, the concept of
broadcasting emerged. Right of broadcasting was also considered to be the part of free
speech and expression. Not only this but along with radio, television, the emails also
were brought into the purview of Article 19(1)(a).
Even the films were the part of freedom of speech and expression. In Bobby Art
International v Om Pal Singh Hoon192 The Court held that the film must be judged in
its entirety from point of view of its overall impact.
The Court however has clearly accepted the fact that though the motion picture is
nothing but a medium of speech and expression, still it has to be kept on different
footing as laid down in the case of K.A Abbas v Union of India193.
In the present times the electronic broadcasting has not only made tremendous
progress in the quantum, but also a vivid progress of the procedure of broadcasting,
such as direct to home broadcasting, Wifi, mobile networks, cable television
networks, radio networks etc. The reason or the focus of all types of broadcasting is to
receive, store and impart information. All these types of broadcasting modes should 192 Supra., p.52 193 Supra., p.52
197
perform the function of receiving, storing and imparting the information neutrally. If
the broadcasting agencies of the media tamper the information in any way then the
fear of the nation being ruled by the press rather than the elected government cannot
be denied.
If one has to see the scope of the powers of the press, then it is mandatory to identify
the end line or the zone or the extent where the scope of the powers finish. These end
lines or the zones or the extent can be termed as limitations or restrictions. So in order
to get the scope of powers of the press, it becomes necessary for one to analyse the
limits of that power, hence a few pages of the research are devoted to the freedom of
speech and expression. Here the reference can be made to the Hohfeldian table of
rights and duties, that every right has a corresponding duty. If some rights are enjoyed
by the press or media, then the duty is upon the state, not to infringe these rights by
making certain drastic legislations. It is accepted that the principle of jurisprudence
should prevail, which states that no concept in any legal system can exist without
limitations. It follows that there should be a balance between the rights of the media
and the restrictions imposed on these rights. The question is how to balance these
seemingly opposite interests. Many a times the free press is considered to be a thorn
in the throat of the government, and hence the government through its shrewd
schemes tries to clip the wings of the press by various orders and statutes, for instance
the word ‘public order’ was inserted by Constitutional (First Amendment) Act 1951.
This clause was inserted to reduce the effect of Romesh Thappar v State of Madras194,
where the court had held that the right to circulation is a part of right to freedom of
speech and expression. Many other cases have been dealt under the topic of judicial
activism and press. 195 The powers of the press have always been the bone of
contention between the executive and the media agencies. The judiciary has played a
very conspicuous and remarkable role to settle the battle between the state and the
press. The judiciary being the guardian of the fundamental rights of the citizens has
tried to protect the freedom of speech and expression of the press, zealously as
reflected in many cases. It can be stated that there was a time when the state was in a
mood to axe down the powers of the press, right from the pre independence regime, to
194 Supra., p. 45 195 Supra., p. 62
198
the post independent period (especially during the emergency times.) Here the press
managed to survive through all the hurdles and become one of the prominent factors
of the independent state, by performing vital function of imparting information.
However in the present times the entire media inclusive of the press has diverted from
their focus of imparting the information and knowledge objectively and fairly; to the
adaptation of modalities of popularity and financial gains even by some times
resorting to misinterpreting or distorting information thereby misleading the masses
or camouflaging their opinions. This is a severe hindrance for the effective
functioning of the democracy.
The press is considered to be the backbone of the democracy and hence is profoundly
important and significant. It has a dual role to perform. On one hand it acts as a
medium to impart information to the public of the state activities. On the other hand it
gives an insight to the government about the public opinion regarding its activities;
hence the press is sometimes known as the pulse of the society. Not only is this, the
media acts as a linkage between the different regions of the entire nation as the
information regarding these regions is circulated by the media. This being an
undeniable fact, a heavy responsibility lies upon the media to discharge its functions
objectively, without bias or any personal or emotional favour.
This entire chapter is devoted to the scope of right to freedom of speech and
expression along with the restrictions. The people staunchly favouring the liberties or
the rights will no doubt try to minimise the restrictions placed on the media, as it is in
consonance with a flourishing democracy. However it is humbly submitted that seeing
the present scenario of the powers and the functioning modes of the media, not only
legal restrictions, but also ethical restrictions should be imposed upon the media.
After scrutinising the constitutional restrictions upon the right to freedom of speech
and expression a few statutory restrictions are analysed.
Chapter III of the present research deals with the important legislations relating to the
press and media in India. The researcher has classified the legislations into two
groups.
199
When a particular legislation deals with the aspect of freedom of press in totality or
generally it can be classified as a general legislation. It means this type of legislation
deals with the freedom of press in a general manner imposing general restrictions. To
put it in other words, this type of legislation does not deal with any particular or
specific aspect related to the press. For example the Indian Penal Code imposes a
general limitation of defamation on the freedom of speech and expression inclusive of
freedom of press.
When legislation deals with a specific aspect of the freedom of press, it can be
classified as a specific legislation. In this type of legislation the legislature’s intent is
to deal with a particular or a specific object related to the freedom of press. It means
that such a specific legislation deals with explicit elements in the form of restrictions
imposed upon the freedom of speech and expression inclusive of freedom of press.
For example, the Cinematograph Act 1952 deals with the restrictions imposed upon
the cinema that is it deals with a specific aspect of freedom of speech and expression
that is the cinema.
A few legislations have been analyzed according to these criteria. Out of the much
general legislations, which have been dealt before, the researcher would like to
comment upon the Information Technology Act 2000. This statute can be considered
as a landmark legislation, as it has brought the revolutionary change in the methods of
communication and storage of the information. This statute has introduced the
electronic medium of the communication, which is very significant for the
convenience and the development of the state. The entire lengthy, complex and
manual labour of indulging into paper work is done away with the replacement of the
electronic medium of communication. Not only this, but as the new vistas of the
communication channels have come up setting up an entire world of networks and
communication, which has really given a boom to the media’s scope. This statute lays
down the powers the procedures and the penalties regarding the electronic medium of
communication. The statute has got far fetching implications and four statutes had to
be amended to incorporate the provisions of the Information Technology Act 2000.
200
All the statutes discussed above do not deal with any particular or specific aspect of
freedom of press and hence they are classified as general statutes. These statutes have
influenced the freedom of press in an indirect or general manner. The said statutes
have either dealt with the nature and scope of the press, or have created a right, or
have given a different dimension to the freedom of press, or have changed the mode
of expression or have placed a restriction or limitation on the freedom of speech and
expression inclusive of freedom of press and media.
In the group of specific legislations some of them are not in consonance with the
concept of freedom of speech and expression as envisaged in today’s times; and the
most glaring example is of the Official Secrets Act 1923.
A very grave demerit of the statute is that, any information covered under Official
Secrets Act 1923 is exempted from The Right to Information Act 2005. This
complicates the matter because the term secret is not defined in The Official Secrets
Act 1923 and the same secret information is exempted from The Right to
Information Act 2005.
Lastly it has to be remembered that this statute was passed by the Britishers, whose
utmost endeavour was to protect their official secrets to stop the growth of mutiny.
But today India is a democracy wherein there is people’s participation in the
government, and there is no question of mutiny. So also all the secret information
regarding defence forces are protected under the various defense statues; hence there
is no point in protecting the official secrets under a separate statute. It is humbly
submitted that The Official Secrets Act 1923, is not applicable in present times, and
hence should be repealed.
The Cinematograph Act 1952 needs a special mention as it deals with two types of
censorships. According to the Act the censorship is to be imposed by the Censor
Board, which is constituted by the Act. Whereas the second censorship is imposed by
the state, even before the film is released. There are a number of movies196 which are
released by the censor board, but are banned by the state. Now a question which
196 Supra., p. 83
201
arises here is that; what is the validity and authenticity of the censor board. If the
Censor Board passes a film, then it means that the film is capable of being shown to
the public. The state in its apprehension that it will cause unrest in the society bans a
movie. The researcher would like to pose a question here that, is the Censor Board
not capable of accessing the impact of the movie on the society? If the state is going
to override the decision of the board, then what is the utility or the functioning of the
Censor Board?
It is true that the motion pictures are capable of stirring the emotions more than the
press, and a pre censorship regarding the motion pictures is necessary, but this does
not mean that it can be done at the whim and fancies of the government or the self
declared authoritarians. To censor the films there is a proper statutory authority and if
it passes the film then it should be displayed without any undue delay.
One important statute which furthers or enhances the ambit of the freedom of speech
and expression is the The Prasar Bharati (Broadcasting Corporation of India) Act,
1990. The credit goes to this statute because for the first time in the history of India,
two important channels of media viz. radio and television were made independent
from the government control. This was a very major step in bringing about the
transparency in the functioning of government. The government was so apprehensive
regarding the independency of radio and television channels of communication that
this statute was not implemented for seven years after its unanimously passing by the
legislature. Eventually in the year 1997 the statute was implemented and the radio
along with the television channels of communications were made independent from
the governmental control. The implementation of the statute was regarded as a
landmark step towards the democracy because of the implications of the statute. Prior
to the year 1997 the government could influence the news as the broadcasting
channels of radio and doordarshan were under the government control. So it is but
natural that these channels could not impart free and objective views which were
against the government policies. After the independency the radio and the
doordarshan channels, can broadcast freely and fearlessly any news or program. So it
can be stated that the Prasar Bharati Act is the real foundation of the democratic state,
within which a free press exists. It is humbly submitted that the Radio and television
channels of communications should be independent from the governmental control,
202
only then they can impart news or information of the government’s activities
objectively, fairly and neutrally. But it should be remembered, that this independency
from the governmental control should be cautiously and carefully enjoyed. The media
channels should not take undue advantage of the extended independence or liberty.
Just because the radio and television channels of communications are free from
governmental control, should not telecast programs which show disrespect to the
government officials of high stature. So also while imparting information the radio
and television channels of communication cannot implant their own views on the
public minds for financial or any other personal motive. Just to give an example if a
government official has some conflict with media personal then the media devotes so
much of time in projecting him as villain, rather than imparting meaningful news.
Another huge leap in bringing about transparency in the functioning of the
government is the enactment of the Right of Information Act 2005. The very essence
of the executive to work in closed chambers has been done away for good with the
implementation of Right to Information Act 2005. This statute has put the last nail in
the coffin of the doctrine of denial of government records and documents in the so
called ‘public interest’.
This Act has cleared all the impediments which were present in securing, gathering
and disseminating information. Barring a few exceptions the media can get access to
any information and communicate it to the public. It can be stated that The Right to
Information Act, 2005 has made things easier for the press and media. By the virtue
of this Act, now it is possible for the media not only, to project more news, but also to
give specific and correct information regarding the government policies and action.
As a result of this, the public can get a clear picture regarding the whereabouts of any
public officer. So in the real sense, this Act helps to bring transparency in the
governance.
A very positive impact of this statute is that it acts as an indirect check on the public
authorities. As all the information relating to the records and documents can be
accessible to the public. This makes it compulsory for them to maintain their
203
documents and records according to the prescribed procedure and order; and hence
apart from acting as an indirect check on the executive, it helps in improving the
efficiency of the executive setup. According to this statute, the public may have
access to the government records which can be scrutinised by the public, and if any
mistake, or negligence, or fraud is evident in the records, that official or department
can be questioned. Hence it can be stated that essential feature of this Act is that it has
brought accountability of the public authorities. One can say that the Right to
Information Act, 2005 has really brought a revolution in the functioning of the
government and other public authorities.
The statute in a way acts as a supplementary asset to the press and the media for the
broadcasting of news. The Right to Information Act 2005 can be regarded as the most
‘happening’ statute of the present media era.
The cumulative effect of the three statutes viz., The Information Technology Act
2000, The Prasar Bharati (Broadcasting Corporation of India) Act, 1990 and Right To
Information Act 2005 is that the media has got gigantic qualitative powers, of course
within certain limits. Few years before the above mentioned statutes were enacted;
there was always the grievance, that the media especially the television
communication channel did not enjoy the freedom in the real sense. The concerned
governmental set up in those years was constantly blamed or criticised for imposing
restrictions or curtailing the liberty of the media channels. Finally the above three
statutes were implemented and the media channels were freed from the chains of the
governmental control. Now it is to be seen how the media channels use these gigantic
qualitative powers for betterment of the state or the society. It is sad to note that many
a times these precious powers are not utilised in a sincere manner to promote the
welfare of the society, but under the garb of imparting information, the media
channels hype an insignificant event, or make a mountain of a molehill regarding any
issue. So also many a time’s privacy of individuals, especially the celebrities is
infringed. The worst aspect of the misuse of media’s powers is that they tarnish or
cover up the image of any government official or a public figure for some personal or
financial benefit.
204
The massive powers of the press were confirmed in order to enable the press to
perform its functions effectively in the society. To access the role of the media in the
democracy the researcher has devoted the chapter IV of the present research for this
task.
The first part of this chapter is devoted to the role of media197, the second part of the
chapter is devoted to the impact of the media on the masses198 and the last part of the
chapter deals with media trial199. The researcher has classified the role of media in
four categories
i. The role of media as an unbiased informer
The first and the foremost duty of the press is to be unbiased informer.
This duty of the press to act as an informer of the society is very
demanding, complicated and crucial. It is very essential to understand this
role of the media. It is not only to impart information, but to impart
unbiased, true, impartial, neutral information. These adjectives unbiased,
true, impartial, neutral affixed to the noun information, casts a very
demanding duty upon the media. The media has got no right to turn, twist
and tamper any information and then project it to the public. The media
cannot impart any false information or play an active part in spreading
any rumor. If the information is false, it will give rise to one grave
consequence that the foundations of the democracy will be shaken as the
public will not be able to know and understand the real facts. The other
aspect of this criterion is that the information should not only be true but
should pass the test of verification. That means the information which the
media passes on to the public should be supported by evidence. The
media cannot project the information based upon some vague assumption
or wishful thinking.
197 Supra., p. 113 198 Supra., p. 122 199 Supra., p. 130
205
The media should report the bare fact without giving its own view,
allowing the viewers to formulate their own independent views. The
media enjoys such a capricious position that sometimes it only changes
the angle of the news whereby the whole focus of the news changes. This
aspect of either highlighting or to downplay any issue should be avoided
by the media. It should not paint or colour the news with its own thinking
or ideas. The job of media is only to report any issue, and not to act as a
judge and pass a judgment on that issue. Practical experiences show that
the media projects the news in such a manner as it wants to be seen by the
public.
A necessary collateral factor of the fair and objective imparting of the
news is that the news should be imparted impartially. But many a times
there are some alluring motives to impart the news. It sometimes happens
that the news reporters report the news for some considerations. In the
cases where the news which is actually an advertisement, but is disguised
as a news item, thereby misleading the public who believes it to be news;
is virtually misguided. Hence the news agency or media who adhere to
such practice will not be considered as a free media, irrespective of the
fact that there was no external compulsion on it to do so. If the media
continues to adhere to this practice of projecting any good or bad news
based on the considerations received by them, then the whole spirit of
democracy will collapse; as the media will project only what the rich
people will want, and people believing the media will act likewise,
depriving themselves from enjoying the real democracy.
Apart from financial considerations another hurdle in imparting the
impartial news is the issue of TRP ratings. Unfortunately the news is
imparted on the basis of getting high rating of TRP. In the unhealthy
competition of TRP ratings the media channels end up projecting news
which is inconsequential but is spicy and appealing to the peoples taste;
and ultimately the news which is of public importance may be over
shadowed.
206
ii. The media’s role as an educator.
In India the media, especially the television communication channels are
regarded as the most unbiased, true projectors of the information or
knowledge and hence the media has assumed the role of the educator.
The most valuable role of the media is to educate the public through
information. When the media gives the exit poll analysis the whole
community who does not understand the complexity of the constitution is
educated to the extent of how much majority of a particular party is
required to form the government. The same can be said about the budget
bill, when communicated by the media, the people get many insights in
the financial matters. Almost every type of information imparts education
in some way or the other. The crucial aspect of education through
information is related to that section of society which is remotely placed
or the illiterate section of the society. This underdeveloped section of the
society may have never been in schools, but they learn through the
medium of television. Other channels like the radio or the press plays
equally important role of educating the masses. The prime function of the
media is to impart information, but the ancillary aspect of this function is
to educate the masses.
Further the media also educates by bringing awareness of the rights of the
individuals. The credit goes to media for making the people aware of their
rights. Another feather in the hat of the media is that, it is responsible for
such a high rate of voting as the people were made aware of the
importance of the constitutional right to vote. Similarly it was the media
who has enlightened the weaker section like women, children, senior
citizen, and other disadvantaged groups of their rights, privileges and the
concessions given by the state. Even the advertising modalities educate
the people, such as ‘Jaago grahak Jaago’ in respect of consumer courts.
So also the advertisements which bring ill effects of the vices such as
smoking, drinking etc educate and make the people aware of the
consequences.
207
It is no doubt that the media has played a crucial role in imparting
education through various modes and on varied subjects to the public at
large.
iii. Media’s role as a mentor.
People in India believe the media channels completely and take the
opinion of the media as the parameter of true facts or information. So also
the media not only imparts information, but also is capable of helping the
public to formulate the opinions. Hence it is said that the media dispenses
the role of a mentor. The role of the mentor is to educate the ward, and
make him independent to take his own decisions. The media also should
adhere to this principle and impart knowledge and the education to the
public and allow the public to take its own decisions. The media should
not put its own opinion in the mouth of the public. In other words the
media should not project information in such a manner that while
imparting the information it makes the people think and act as it wants.
This is where the crucial aspect lies because it is very difficult to impart
news impartially. The influential journalists of the media are so skillful
that they project the information mixed with their comments and
commentaries, which the people believe to be objective and real, and act
according to the journalist’s opinion.
iv. Role of the media as the guardian
There is no doubt that the judiciary is regarded as the guardian of the
rights of the people; however the media is also regarded as supplementary
guardian of the rights of the people.
The role of the media as the guardian is implicit in the existence of the
media. To put it in other words, the media has come into existence to
protect the interests of the public by the way of imparting information and
education. Entertainment is the secondary role of the media. Media
protects the interest of the public at large by publicizing mistakes or
negligent activities or any tyrannical acts of any state officials. It is
frequently said that publicity is the best antidote for the arbitrary rule.
208
Exposure of the wrong or illegal actions of the public officers brings a
discontentment or dislike of the public, which constitutes as deterrent
check on their arbitrary actions.
The judiciary acts as a guardian only in those cases which come before
the court. But in the case of media this limitation is not applicable. On the
other hand the media can operate sue motto and can expose the
infringement of a right or liberty of any individual in the society. It does
not wait like the courts for the individual to approach it for the
publication of the infringement of that right. This is definitely a very
important advantage of the media over the judiciary, and hence it can
serve to do justice more effectively.
It should be appreciated that the media performs vital role in imparting
the information and educating the masses; however one note of caution
would be liked to be given here that while performing its role the media
should bear in mind that it has to act in objective and impartial manner.
The second part of the chapter deals with the impact of the media on the masses. It
would not be very wrong to state that the media seems to be omnipotent because there
is no aspect of life upon which the media has not touched upon. Hence the impact of
the media is also tremendous and far fetching. Every concept has got a positive as
well as a negative aspect, and media is no exception to it.
The positive impact of the media on the society is that the media makes the
democracy effective and efficient. As stated earlier the media abridges the gap
between the government and the people. The media communicates the government’s
policies, plans, schemes, programs to the public. Simultaneously the media helps the
government to know the pulse of the society by communicating to it the moods and
reactions of the public. It is very correctly stated by Von Savigny, that the government
209
which is sensitive and alert to the public’s mood that is the pulse of the society is a
very stable and efficient government200.
On the other hand the media aids and assists the government in implementing its
policies. It also helps the people to participate in the functioning of the government,
by expressing their opinions. The media is so influential that the opinion it indirectly
projects before the people is accepted and acted upon during the elections. The press
or the media projects the electoral candidate in a good or bad light which plays a
significant role in influencing the people to make their appropriate choices.
The media helps in the implementation of the Rule of the Law. The media acts as
check on the governmental actions and compels the government indirectly to
functions within its legal framework. The media makes the government officials to act
in accordance with law and if they don’t their activities are immediately projected
before public; and hence it can be stated that the media implements the rule of law.
The only apprehension to be expressed here is that the media while helping in the
implementation of the rule of law with excess zeal and enthusiasm should not over
step its limits and end up with the rule of media.
The media also upholds and enforces the constitutional values to a certain extent. The
media promotes the values enshrined in the constitution such as nationalism, integrity
of the state, brotherhood, religious tolerance etc The prime function of the media is to
impart information; but while performing this function, the media also imparts
education, awareness, brotherhood and fraternity, which are embodied in the
preamble and the directive policies of the state of the Indian Constitution. Not only
this but it also helps to protect and promote some basic fundamental rights such as
right to life, liberty and equality. When the state tries to infringe any fundamental or
constitutional rights, the media exposes and projects such cases to the public at large.
The government is afraid of such negative publicity as it tarnishes its image in front of
the public and tries to immediately redress the grievance. To put it precisely one can
say that the media indirectly compels the government to act within the constitutional
framework.
200 Supra., p123
210
A good and an active media helps the society in formulating a public opinion. It is one
of the basic functions of the media to impart information to the public so that the
public can formulate its own opinion. It is a known fact that the strong public opinion
is the deterrent check on the government. The media should not only enable the public
to formulate the public opinion, but should also organize it and then communicate it
to the government. Then one can say that the role of the media is successfully
achieved.
Today the protection of environment has become a major global issue, and all
countries are trying to protect the same by legal measurements.
The media also endeavours to protect the environment by giving coverage to many
programs like planting of trees, saving water, saving fuel, construction and
maintenance of toilets, and movements like ‘Swacha Bharat’ which had a tremendous
effect on the people. As a result of these programs the environmental laws were
implemented effectively. The public at large started taking steps to protect the
environment because of the initiative taken by the media. The media has contributed
indirectly in protecting the environment, by campaigning to protect the same.
It is the welfare function of the state to provide aid or assistance or help to the people
affected by such a disaster or a calamity. The media acts as an extended arm of the
state in such situations and provides the necessary relief with the help of the public. It
provides the aid to the victims, by informing to their relatives their whereabouts or
other details. The secondary role of the media is that it acts as a source of
entertainment. There are many modes of the entertainment available through the
media channels today. Sometimes these entertainment channels or the media are more
popular and hence the organisers from the media give more attention to these
channels as compared to other channels. Because of these positive aspects of the
media it has become really very strong organised and is exercising dominion almost at
all levels. The media knows its power, and hence sometimes acts in a dominant or
dictatorial manner.
The negative impact of the media on the society is to a large extent. Sometimes
excessive coverage to hype certain sensitive news may lead to unrest in the society.
211
Commercialisation and liberalisation has led to a cut throat and unhealthy competition
in the media. A serious concern is this that the private channels of the media are
continuously engaged in combating with one another for the Television Rating Points
(TRP). As a result of which the channels instead of imparting objective and fair news,
they mould, twist and turn the news to make it more spicy and appealing to the public.
So now the thrust of the channels is to project such news which is catching and
appealing, rather than the real and factual news. The consequences of this are very
grave because the main objective and the focus of the media is totally grounded and
the financial considerations are allowed to play a major role in the function of
imparting information. Today the media instead of only imparting the news,
bombards the public with their views, opinions and comments to an extent that the
public gets psyched by their comments, opinion and takes a decision which suits the
interest of the media, rather than their own interest.
No one can deny the contribution of the media in the development of the society at
large, but the media sometimes oversteps its powers because of which the focus of the
welfare is lost and is replaced by media’s selfish interest.
Another controversial aspect which prevails is the concept of media trial, and the last
part of the chapter IV is devoted to the few aspects of media trial201. Few of the media
trials have been discussed in detail in this chapter. Today the media trial has become
very popular in the public as well as in the media sections. By projecting the media
trials the media channels TRP ratings increase; and the media trials are liked by the
public also. The whole world knows that media plays an important role in the
preservation and promotion of democracy. It is also known that the media performs an
important function of imparting fair, objective, and true information to the public.
This image has been acquired by the media over a period of time and the public
believes in the same image of the media. Hence whatever has been projected by the
media in media trial; the public believes the same to be correct and in consonance
with justice. Nobody questions the intentions or the objectives of the media while
201 Supra., p.130
212
projecting the information, and hence whatever is shown in the media trial is chewed
and digested by the public.
In the cases of media trial, the principles of criminal jurisprudence are violated, such
as the accused should be presumed innocent unless proven guilty beyond reasonable
doubt.
In 2006, the Law Commission in its 200th report has clearly stated that the
consequences of media trial, not only affects the system of Criminal Justice, but also
affects the rights of the accused, and damages his images in the society.
It is humbly submitted that the media and the judiciary should play a supportive role
to each other. The media should bring out the wrong happenings and ensure that the
prosecution against such wrong is commenced. However, once the prosecution
commences, the media should limit itself to mere reporting. Whenever the reporting
of the pending cases is done by the media then the guidelines which are forwarded by
the researcher should be strictly adhered by the media.202 The guidelines are based
upon Roscoe Pound’s theory of balancing the conflicting interest. The guidelines
stated by the researcher are to balance the interest of the media to report the court
proceedings and also to safeguard the right of the accused to fair trial. Thus the clash
of rights of media and the rights of the accused will be averted, without anybody
having to sacrifice their interest entirely.
After accessing the concept, restrictions and role of the media the researcher has
moved his attention to the challenges which are encountered by the media. It is not
very easy for the media to face the difficult challenges posed before it. The media,
especially the print media has faced tremendous difficulties right from the pre-
independence era and has managed to not only to survive, but is also successful in
shouldering its responsibilities. The media has to be applauded for the various
functions it discharges efficiently in the society. However sometimes the media
oversteps its authority and power, and hence one is a little worried that it should not
infringed someone’s rights. The media is like a mirror which reflects the bare realities
as it exists. The media should not be a concave or a convex mirror. To put it in other
words, the media like a mirror should only reflect the facts and not magnify or change
202 Supra p148
213
or shrink,(like the concave or convex mirror) the facts, while projecting them before
the society. This aspect should never be forgotten by the media, however today the
media plays the role of the concave or convex mirror and skilfully distorts or changes
the information, while projecting it before the society.
Imparting information and educating the masses through information is the essential
function of the media. Technology has played a pivotal role in enabling the media to
discharge its function efficiently. The modern age is regarded as the era of
information and technology. The consequence of the increased volume of information
and technology has led to the fact that; the society not only thrives upon the
voluminous information, but the societal life exists on the vast and diverse
information. Not only vast, diverse and varied information is imparted to the society,
but information from every aspect of the society or from every nook and corner of the
entire global arena is bombarded on the society.
In addition to the diverse information which is projected by the media, another very
crucial aspect is this that this diverse information is imparted very easily and quickly.
In fact the vast information is available at the tip of the fingers of a person. So the
advantage of the media is two folds : one -vast varied, diverse, and multifarious
information is imparted to the public at large, and the second – such information is
made very easily and speedily available to the public at large. As a result of the fact
that the information is easily and speedily available, the public heavily relies upon the
media. Due to which the media enjoys its influencing powers and hence it has become
the most powerful influential instrument today. No other agency is able to leave the
lasting impact upon the minds of the people, as that of the media. There are some
theories which try to explain the reasons for the influential powers of the media which
are analysed in chapter V of the present research203
The researcher humbly feels that the Culturalist Theory204 should prevail ideally. It
means that the media broadcasts the news and each person is influenced by the news
203 Supra,. p.156 204 Supra,. p. 157
214
according to his or her personal and social factors such as financial limitations,
region, religion, social strata etc. Here the media does not influence the public, but the
public is influenced by the news or information according to their own attitude,
understanding, and personal circumstances. The Culturalist theory clearly projects the
media as a mirror which merely reflects the facts as they exists.
Unfortunately the culturist theory is an Utopian concept, at least in today’s times. The
present researcher feels that the Class Dominant theory205 of media influence prevails.
According to this theory the Bureaucrats and the rich and the powerful people control
the media corporation. It is these people from the executive or the legislature
pressurise the media to impart information or withhold the information. So ultimately
only that information and in the manner and extent the Bureaucrats wants to be
circulated, is projected by the media. It can be deduced that the media becomes the
mouth piece of the rich, powerful, and the dominant class.
A formidable challenge before the media is the concept of paid news.206 Paid news is
an advertisement which is designed as news and the viewer is made to believe that it
is news, when actually it is not. Such a disguise is made to either promote or defame
someone, in exchange for consideration.
The paid news concept is detrimental for the basis of a democracy as it is an attempt
to misguide the people. In today’s world the people believe in the media, and when
media indulges in such a practise of paid news, the people who will believe that news,
which is a paid one, may end up making a very wrong choice.
In a country like India, the people tend to believe the media, so when the media,
especially the press writes anything good or bad about someone, the people tend to
believe it. The rich politicians in India take the advantage of such a belief, and for
consideration gets lavish praise for them, or taint or tarnish the image of the
205 Id. 206 Supra,. p. 159
215
opponents. The concept of paid news is like dynamite, which blasts the very essential
or the original function of the media, of imparting the impartial news, which is the
foundation of any democratic setup.
Cross media holdings is another impediment in the smooth functioning of the
democracy. The basic concept of having multiple channels, or different editions is that
the diverse views could be available to the public, however in cross media holdings,
the diversity itself is cut down, as though the number of channels or magazines may
be sizable, but the number of operating such media may be very less (The South
Indian Channel Sun T.V has 14 channels, four magazines and two newspapers.)207 It
is quite obvious that, the same opinion is reflected in various media platforms, which
is owned by the same person. People are aware about the existence of many channels
(400 channels are been provided) but very few people are aware that the said number
of channels are operated by only 11 cable distributers.208 This means that though we
are having access to 400 channels, we are only accessing the views of 11 people, who
are operating those channels. Further because one person may operate many channels,
his views and the same news are projected in those many channels, the people
profoundly believe those views merely because they are repeatedly projected by the
different channels, but by the same persons. Hence the media misleads the public by
projecting similar views in different channels which are actually owned by very few
people.
The print media faces a number of challenges with the advancement of technology as
different sources of news agencies, apart from the print media have emerged. One
prime problem, which is faced by the print media, is the concept of Aliteracy209. The
print media already faces the limitation because of the low literacy and the problem of
the print media is enhanced severely because of aliteracy. The print media cannot
perform its function of imparting knowledge to the people who cannot read and write;
but what can be done in those cases where the people can read and write, but refuse to
read the newspapers. Another severe limitation to the print media is due to the
207 Supra. p 162 208 id 209 Supra. p 168
216
advancement of technology; which projects the news more speedily and easily as
compared to the newspapers.
One of the threads in the entire fabric of the media network is the social media210,
which has gained tremendous popularity. As one can see that the social media from a
primitive stage, has developed to the most sophisticated mode. The social media has
also undergone a sea change in its function; because initially the social media’s
function was only to cater to social communication, and today, the social media is
playing an important role in almost every aspect of human life. With the help of social
media, the users of it use it to promote their business, trade, advertise their
occupation. The artists use the social media to promote and advertise their work,
including music. The professionals use the social media to promote their profession
and intellectual work; sometimes education is also imparted through the social media.
Cultural, religious and political events are promoted with the help of social media. It
can be said that the ancient social media performed the function of social
communication, and the today’s social media, 2016 is omnipresent because almost
every activity of human beings as well as the institutions cannot be carried out
without the help of the social media.
However the social media is not free from complications and problems which are
content ownership211, defamation and other torts212. Defamation is most rampant and
can said to be a curse, that social media suffers. The social media has also become a
place for criminal activities. Lot of criminal activities is taking place through the
social media; and sometimes it is stated that the social media is a hub for posting
offensive text, posting morphed or private, or porn videos etc.
Sometimes in it’s over enthusiasm the media exceeds their limits and treads upon the
private arena of the individuals resulting into infringement of right to privacy. Right
to privacy is invaded with the misuse of number of websites such as Facebook,
Whatsapp, My space etc. Through the browser multiplayer games personal
210 Supra. p 170 211 Supra. p 176 212 id
217
information through the profile is made available to any person, which in turn may be
misused and hence the right to privacy is violated.
Today it is a compulsory fashion to put each and every, and sometimes even the
minute information about oneself, family, friends, etc on social media like the
facebook. Such posts on the social network can be easily accessible to the cyber
criminals, who do not hesitate to invade the privacy of the person for their gains.
Not only this, but the social media may be used as a tool of harassment.
Apart from this the one more concern about the social media is that it ruins the
marriages. Social media, especially the Whatsapp is one of the reasons for the
increase of the divorce rate. The social media not only harasses the people in their
personal circle but also may be reason for the loss of people at the professional circle
as well.
The threat of social media is also stretched beyond the personal or professional
circles. It has also become a hub for carrying out terrorist activities. The terrorists can
plan as to which type of attack is to be carried, when it is to be carried out, whether
the attack to be carried out is physical or a cyber. There are also professional unethical
hackers who hack the websites for exchange of hefty fees, or do it for carrying out
terrorist activities.
Democracy thrives upon the people’s participation in the governmental activities.
People can participate in the governmental activities only if they are aware of
government’s actions and policies, and the government is aware about the people’s
aspirations and needs. It is the media which acts as a linkage to communicate the
thoughts of the public and government to each other, and hence it is stated that the
media is the backbone of the democratic setup or the fourth estate of democracy. As
the media enjoys an indispensible fundamental place in the democracy it is flooded
with the liberties and powers. The media has to use these liberties and the powers in
an objective, neutral and impartial manner to promote and strengthen the principles of
democracy. However it is seen in today’s times that the media utilizes its strength and
power to fulfil its own objectives such as the TRP ratings or it acts or some
218
commercial or financial considerations. This aspect of media completely water downs
its image and shakes the foundations of the democracy.
It can be said that the journey of the media has travelled from the north pole to the
south pole because, few years ago the focus was on how to curtail or minimise the
restrictions on the media, but today the focus is upon how to control or make the
media more accountable. Today the media is so powerful and almost omnipotent that
one has got the apprehension that the rule of law and the role of the media might be
replaced by the rule of media and the role of law.
***
VIII
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XXI
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XXII
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XXIII
ACTS
1. The Press Ordinance Act, 1823.
2. The Licensing Act, 1857.
3. The Indian Penal Code, 1860.
4. The Press and Registration of Books Act, 1867.
5. The Dramatic Performances Act, 1876
6. The Vernacular Press Act, 1878
7. The Indian Telegraphic Act, 1885.
8. The Indian Official Documents and Information Act, 1889.
9. The Indian Council Act, 1892.
10. The Newspapers (Incitement of Offences) Act, 1908.
11. The Indian Press Act, 1910.
12. The Indian States (Protection against Disaffection) Act, 1922.
13. The Official Secrets Act, 1923.
14. The Indian Press (Emergency Powers) Act, 1931.
15. The Foreign Relations Act, 1932.
16. The Indian States (Protection) Act, 1934.
XXIV
17. The Drugs and Cosmetics Act, 1940.
18. The Constitution of India 1950.
19. The Emblems and Names (Prevention of Improper Use) Act, 1950.
20. The Representation of People Act, 1951.
21. The Press (Objectionable Matter) Act, 1951.
22. The Cinematograph Act, 1952.
23. The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954.
24. The Hindu Marraige Act, 1955.
25. The Young Persons (Harmful Publications) Act, 1956.
26. The Copyright Act, 1957.
27. The Prize Chits and Money Circulation Schemes (Banning) Act, 1978.
28. The Cine-Workers Welfare Cess Act, 1981.
29. The Cine-Workers Welfares Fund Act, 1981.
30. The Cine-Workers and Cinema Theatre Workers (Regulation and Employment) Act,
1981.
31. Advertising Standards Council of India (ASCI), 1985.
32. The Consumer Protection Act, 1986.
33. The Indecent Representation of Women (Prohibition) Act, 1986.
XXV
34. The Prasar Bharati (Broadcasting Corporation of India) Act, 1990.
35. The Cable Television Network Rules, 1994.
36. The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.
37. The transplantation of Human Organs Act, 1994.
38. The Cable Television Networks (Regulation) Act, 1995.
39. The Cigarettes and other Tobacco products Prohibition of Advertisement and Regulation
of Trade and Commerce, Production, Supply and Distribution) Act, 2003.
40. The Right to Information Act, 2005.
41. The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007.
42. The Cable Television Networks Regulation (Amendment) Act, 2011.
43. The Copyright (Amendment) Act, 2012.
XXVI
REGULATIONS
1. The Telecommunication (Broadcasting and Cable Service) Interconnection Regulation,
2004.
2. The standards of Quality of Service (Broadcasting and Cable Services) CAS Areas
Regulation, 2006.
3. The Direct to home Broadcasting Services (Standard of Quality of Services and Redressel
of Grievances) Regulation, 2007.
BILLS REGULATING ELECTRONIC MEDIA
1. Communication Convergence Bill, 2001.
2. Broadcasting Services Regulation Bill, 2006.
REPORTS
1. Reports of Press Commission, 1954.
2. Annual Reports of Ministry of Information and Broadcasting, 1980.
3. Annual Report 2009-10 of DAVP (Directorate of Advertising and Visual Publicity).
4. Mass Media in India, 2009, Publication Division, Ministry of Information and
Broadcasting, Government of India.
5. Law Commission of India, 200th Report on Trial by Media.
XXVII
6. Annual Report of Ministry of Information and Broadcasting 2011-12.
7. Fink, Arlene. (2010). Conducting Research Literature Reviews: From the Internet to
Paper. London: Sage Publications.First Press Commission Report (1954).
8. Press Council of India Reports and Reviews (1970,1983).
9. Press Council Report (2010-2011).
10. Report of the Second Press Commission (1982). Vol. I, New Delhi: Controller of
Publications.
GUIDELINES
1. Guidelines for certificate of films for public exhibition, 1991.
2. Down linking Guidelines, 2005 by Ministry of Information and Broadcasting, 2005.
XXVIII
WEBSITES
1. http://answers.yahoo.com
2. www.media-awareness.ca
3. www.indialaw.com
4. www.cry.org/home/newsandevents.
5. www.abacon.com
6. www.mediacrime.com
7. http://blog.crjayaprakash.com/?p=285 Accessed on:28/10/2013.
8.http://en.rsf.org/india-journalists-attacked-in-kashmir-28-04-2014,46206.html.
9.http://www.guardian.co.uk/world/2011/jan/27/china-press-freedom. Accessed
10.http://www.hindu.com/2004/01/12/stories/2004011201571000.htm.Accessed
11.https://in.news.yahoo.com/india-82237-newspapers-4853-registered-2010-11-
121003100.html
12.http://www.infibeam.com/Books/kanishka-publisher/" _Kanishka_, Panikkar, N.K. (2004,
January 12). Opinion: Media and the public sphere. The Hindu.
13.https://maninblue1947.wordpress.com/2014/01/01/.
14. http://ncert-notes.blogspot.in/2010_02_05_archive.html.
15.http://netjrfmasscomm.blogspot.in/2010/04/trace-history-of-first-and-secondpress.
html.
XXIX
16.http://pawankumarjha.tripod.com/news-s.html#Andhra Pradesh.
17.http://presscouncil.nic.in/Content/29_3_History.aspx
18.http://presscouncil.nic.in/OldWebsite/history.htm.
19.www.pucl.org/from-archives/Media/freedom-press.htm.
20. http://samajawad.blogspot.in/2013/02/media-social-responsibility.html.
21.http://www.thehoot.org/web/home/index.php
22. http://thehoot.org/web/NEWSPAPERS/5845-1-1-37-true.html
23.http://vishnuprasadu.blogspot.in/2010_02_01_archive.html.
24.http://www.zeepedia.com/read.php?normative_theories_authoritarian_theory_libertarian_t
heory_limitations_theories_of_communication&b=81&c=5.
Accessed on: 24/1/2013.
XXX
ELECTRONIC RECOURSE
1. Anand, Navneet. (1999). Role of the Press in Political Mobilization: A Comarative
Analysis of Colonial and Independent India. New Delhi. Available at:
http://shodhganga.inflibnet.ac.in:8080/jspui/handle/10603/15229.
2. Habermas, Jürgen (1964). The Public Sphere: An Encyclopedia Article. New German
Critique, No. 3. (Autumn, 1974), pp. 49-55. Available at:
http://chisineu.files.wordpress.com/2012/07/biblioteca_habermas_the-publicsphere. pdf.
3. Nwankwo, Victoria Chioma. (2011). The Role of The Media in Promoting Human
Rights: An analysis of the BBC documentary, ‘Chocolate: the bitter truth’.London:
University of Gothenburg
http://munin.uit.no/bitstream/handle/10037/3500/thesis.pdf?sequence=1
http://hub.hku.hk/handle/10722/32128.
4. Yiu-Ming. To. (2002). A Communitarian Theory of Press Freedom. Hong Kong:
The University of Hong Kong. Available at: http://hub.hku.hk/handle/10722/32128.
Accessed on: 12/5/2013.
Zikmund, William G. (1988). Business Research Methods (2nd ed.). Chicago: The Dryden
Press.
XXXI
SUBJECT INDEX
Adams Regulations --- 33
Advertising Standard Council of India -- 106
Aliteracy --- 169
Amrita Baazar Patrika –33
Bal Gangaa Dhar Tilak –34
Balancing of conflicting interest – 02, 04, 188, 189,196,
Beyond reasonable doubt – 16
Broadcast ---- 51
Cable Television Networks Act 1995. --- 96
Central Board of Film Censors ---108
Content ownership -- 176
Cross media holdings --- 159
Cyber bulling -- 163
Cyber stalking -- 179
Daccan Star ---- 35
Defamation ---23,24,57,
Directive Principles --- 124
Directorate field publicity --- 106
Drug and Magic Remedies (Objectionable Advertisement) Act 1954. ---86
East Indian Company --- 32
Election commission –161
Emperor Ashok --- 30
Environment --- 125, 208
Fair trial ---130
position in United states of America, --131
position in United Kingdom, -134
position in India –136
Glorification of crimes -- 165
Hastag Hiacjaking -- 187
Hickley --- 32
Hohfeld --- 113
Indian Mirror --- 33
XXXII
Information Technology Act 2000. --75
International Covenants on Civil and Political rights 1976 – 29
Kesari ---34
Law Commission --- 17, 148, 212,
Legislative proceedings --- 48
Lord Acton --- 120
Lord Morely Mintoo – 35
Lord Wellesly –33
Mahadeo Govind Ranade---34
Marxian state --- 05
Media ----111
role ----113
public opinion --- 114, 124,198,210
unbiased informer ---113
impact –122
accountability – 1, 191
theories of media influence --- 156
Media activism --- 17, 148
Ministry of Information and Broadcasting ---101
Modern Natural Law Theory --- 04, 190,
Monopolies and Restrictive Trade Practices Act 1969 ---74
Montesquieu – 120
Mughal Period ----31
Paid news --- 159
Prasar Bharati Corporation Act 1990. ----93
Preamble – 36
Press –
constitutional Status ---- 37
importance –39
rights --- 40
powers -44
advertising – 49
restrictions -53
judicial activism --61
XXXIII
Press commission – 58
Press Council Act 1978 ---92
Press Council Board --- 102, 103
Press Information Bureau ---104
Prevention of Publication of Objectionable Matter Act, 1976 (repealed in 1977) --90
Reasonability -- 08, 09,54
Registrar of Newspaper for India ---104
Right to Information Act 2005 --- 97
Right to privacy ---180
Rule of Law ---- 123, 218
Samachar Darpan ---33
Social media ---171
Spamming --- 179
Stale news --- 170
Stockholm Convention 1972 ---125
Telecom Regulatory Authority of India ---105
The Cinematograph Act 1952. --- 83,200
The Copyright Act 1957. ---89
The Indian Penal Code 1860 --72
The Indian Telegraph Act 1885 --- 72
The Newspaper (Prices and Pages) Act 1956 --- 88
The Official Secrets Act 1923 ---- 81
The Press and Registration of Books Act 1867 --- 78
The Unlawful Activities (Prevention) Act 1967 ---73
Universal Declaration of Human Rights – 29
Warren Hastings –32
Watering hole Attacks ---187
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